Queensland Bills Explanatory Notes Queensland Bills Explanatory Notes[Index] [Search] [Download] [Bill] [Help]
1
Cremations Bill 2002
CREMATIONS BILL 2002
EXPLANATORY NOTES
GENERAL OUTLINE
Objectives of the legislation
This bill's primary objective is ensuring that the body of a person whose
death is suspicious or should otherwise be reported to a coroner is not
cremated without discovery. Its secondary purpose is to ensure, as much as
possible, that bodies which still contain cremation risks (for example
cardiac pacemakers) are not cremated. Cremation risks are something that,
if cremated, might expose someone to the risk of death, injury or illness.
Reasons for the objective and how they will be achieved
The cremation of human remains will often mean that any evidence that
the death occurred in suspicious or other circumstances that warrant further
investigation is destroyed. This is why the current Queensland provisions
governing cremations (contained in sections 23A to 23G of the Coroners
Act 1958) and most interstate legislation require not only a medical
certificate as to the cause of death but also a certificate by a second doctor
before human remains are cremated.
It is proposed to have a separate Cremations Act because the scope of the
provisions is wider than just deaths subject to the coroner's jurisdiction.
The bill achieves the above objectives by:
· requiring (except where an autopsy has been conducted by order
of a Queensland coroner) for the issue of a cause of death
certificate and a permission to cremate by a doctor (other than
the doctor who issued the medical certificate as to cause of
death). The doctor has to examine the body before the doctor can
issue the permission to cremate. Where an autopsy has been
conducted by order of a Queensland coroner, the coroner will
issue the permission to cremate.
· requiring, where possible and except where the permission to
cremate is to be issued by a coroner, that the application be
2
Cremations Bill 2002
accompanied by a cremation risk certificate (which will note
whether the body contains a cremation risk such as a pacemaker).
The bill, like the current provisions, also overrides the common law
regarding the disposal of bodies by:
· requiring a deceased person's wishes that his/her body be
cremated are to be carried out; and
· providing that a cremation cannot occur when certain people
object.
The bill, like the current provisions, places obligations on the person in
charge of a crematorium in respect of the return of ashes.
Alternatives to the Bill
There are no real alternatives to the bill.
Administrative cost to Government of implementation
The bill's implementation should not raise any administrative costs to
government.
Consistency with fundamental legislative principles
The bill is consistent with fundamental legislative principles.
CONSULTATION
Community
A draft of the bill was forwarded to funeral and crematoria industry
associations, the Queensland Branch of the Australian Medical
Association, the Rural Doctors Association of Queensland, the Local
Government Association of Queensland, the Bar Association and the
Queensland Law Society.
Government
Queensland Health, the Queensland Police Service, the Department of
Aboriginal and Torres Strait Islander Policy, the Environment Protection
Agency, the Department of Local Government and Planning, Queensland
3
Cremations Bill 2002
Treasury and the Department of Premier and Cabinet were consulted in the
drafting of the bill.
The Chief Justice, the Chief Judge of the District Court, the Chief
Magistrate and the current Brisbane Coroner were all sent a draft of the bill
for comment.
NOTES ON PROVISIONS
Clause 1 Short title: Provides that the short title of the bill is the
Cremations Act 2002
Clause 2 Commencement: Provides that the Act commences on the day
the Coroners Act 2002 commences. This is because the current legislative
provisions governing cremations are contained in the Coroners Act 1958
which will be repealed upon the commencement of the Coroners Act 2002.
Clause 3 Definitions: Provides that the dictionary in the schedule
defines particular words used in the Act.
Clause 4 Cremations this Act does not apply to: Provides that the Act
does not apply to the cremation of -
· human remains (defined in the dictionary to mean the remains
after death of a human body and includes the body of a stillborn
child ) that have been buried for 1 year or more
(The current Coroners Act 1958 provides for regulations to be
made to deal with these types of cremations. Regulations have
never been made.)
· parts of a human body taken during a medical procedure or
autopsy. (An autopsy is defined in the dictionary to mean an
autopsy or post mortem under Queensland coroners legislation or
its interstate or overseas equivalent as well as an autopsy or post
mortem under the Transplantation and Anatomy Act 1974 or its
interstate or overseas equivalent).
· Human remains to which the section 34 of the Cultural Record
(Landscapes Queensland and Queensland Estate) Act 1987
(these are basically ancestral indigenous remains).
4
Cremations Bill 2002
Clause 5 Permission required for cremation: Provides that a person
must not cremate human remains unless the person has a permission to
cremate issued by:
(a) if an autopsy was conducted under the Coroners Act 1958 or
Coroners Act 2002 the coroner who ordered the autopsy or
another coroner.
(Given that the purpose of an autopsy ordered by a coroner is to
examine the body to determine the medical cause of death, there
seems little point in having a second doctor involved in these
cases. This is why the coroner will be issuing the permission to
cremate in these cases. A similar regime operates in New South
Wales.)
(b) otherwise--an independent doctor (which is defined in the
dictionary to mean a doctor who did not sign the cause of death
certificate or cremation risk certificate. The definition of "doctor"
in the dictionary makes it clear that the independent doctor has to
be a doctor registered under the Medical Practitioners
Registration Act 2001 that is, not a doctor from another State or
country.)
Clause 6 Getting permission to cremate: This clause deals with who
can apply for the permission to cremate, the documents that have to
accompany the application and what the person issuing the permission to
cremate has to be satisfied of before the permission to cremate is issued.
Clause 6(1) provides that the following people can make the application:
· close relative of the deceased person. "Close relative" is defined
in the dictionary to mean a spouse, child over 18, parent, brother
or sister or if the deceased was an Aboriginal or Torres Strait
Islander - an appropriate person according to the tradition or
custom of the community to which the deceased belonged. The
definition of spouse includes a de facto partner which is defined
in clause 17 in terms identical to recent amendments to the Acts
Interpretation Act 1954. )
· a personal representative
· another adult who has a satisfactory explanation as to why those
persons did not apply and why the other adult is applying.
Unlike the current provisions, the bill does not specifically state that an
agent may make the application. As noted in the footnote to clause 6(1)
of the bill, the bill relies on the general law principle that a person may
5
Cremations Bill 2002
act through an agent. This means that an agent of any of the people
referred to in clause 6(1) (a) or (b) can make the application.
Clause 6(2) provides that the application must be made in the approved
form.
Clause 6(3) provides that the application can be sent to the coroner or
independent doctor by fax or other electronic means
Clauses6 (4) and (5) provide what is to accompany an application to an
independent doctor:
(a) copy of the cause of death certificate which is defined to mean
either:
· a medical certificate as to the cause of death/ perinatal death
under the Registration of Births, Deaths and Marriages Act
1962; or
· a certificate stating the cause of death issued by a doctor.
The effect of this is to recognise a cause of death certificate
issued outside Queensland when a body is repatriated to
Queensland for cremation.
and a cremation risk certificate - except where the cause of
death certificate is not issued in Queensland (for example
where the body is repatriated back to Queensland for
cremation) and no cremation risk certificate is available.
or
(b) a certificate authorising the release of a body by a person who
appears to be the coroner at the place where the death happened.
This in effect recognises a coroner's order for release from
another State or country where a body is repatriated to
Queensland for cremation.
Clause 6(6) provides that a coroner in Queensland can only issue a
permission to cremate if:
· the coroner or another coroner has authorised the release of the
body; and
· the coroner receives confirmation from the doctor conducting the
autopsy that the doctor is reasonably satisfied that the human
remains do not pose a cremation risk.
6
Cremations Bill 2002
Clause 6(7) provides that human remains provide a cremation risk if they
contain something that might expose someone to death, injury or illness
if cremated (for example a cardiac pacemaker or radioactive implant).
Clause 6(8) provides that an independent doctor can only issue a
permission to cremate: if the doctor, after examining the remains and
making any necessary inquiries, is reasonably satisfied that:
· the remains do not pose a cremation risk; and
· the death is not reportable to the coroner under the Coroners Act
2002.
Clause 6(9) provides that the way a permission to cremate may be sent to
the applicant, or a person nominated by the applicant on the application,
includes by fax or other electronic means.
Clause 7 Deceased person's wish to be cremated: This clause applies
where a personal representative is arranging for the disposal of a person's
remains and knows that the deceased person has left signed instructions for
his/her human remains to be cremated. In this situation the personal
representative is to ensure that the application for permission to cremate is
made and, if issued, that the deceased person is cremated.
The clause, based on section 23C (2) of the Coroners Act 1958, makes it
clear that it overrides the common law to the extent that it:
· allows a person to direct his/her personal representative to
cremate the person's remains; and
· qualifies a personal representative's right to decide how to
dispose of a deceased person's remains.
Clause 8 Objections to cremation: This clause deals with objections to
cremation. The clause does not apply where a deceased person has left
signed instructions that his/her human remains are to be cremated.
The clause provides that a permission to cremate cannot issue, or a
cremation occur, if a spouse, adult child or parent of the deceased, or a
personal representative of the deceased objects to the cremation.
The clause, based on sections 23C(1) and 23C(2) of the Coroners Act
1958 , overrides the common law to the extent that it qualifies a personal
representative's right to decide how to dispose of the deceased person's
remains.
Clause 9 Beneficiaries etc not to issue permission to cremate:
Provides that the coroner or independent doctor must not issue a
permission to cremate if he/she reasonably suspects that the coroner or
7
Cremations Bill 2002
independent doctor (or the spouse of the coroner or independent doctor)
may receive a benefit from a person's death. A benefit does not include
payment for professional services.
This clause is based on section 23D of the Coroners Act 1958.
Clause 10 Prohibiting cremation: Provides that the Attorney-General
or a coroner may give the person in charge of the crematorium a notice
prohibiting cremation. It may be an absolute prohibition or a prohibition
pending removal of stated organs or other tissue.
The person in charge must comply with the notice and there is an offence
for failing to comply with the notice.
The clause is based on section 23E of the Coroners Act 1958.
Clause 11 Dealing with ashes: Provides that the person in charge of the
crematorium must:
· give the ashes to the applicant for permission to cremate; or
· (but only if the applicant is the deceased person's personal
representative) deal with them in accordance with any
reasonable written instructions of the personal representative.
The reason for this additional option where the applicant is the
personal representative is because at common law the personal
representative would have an entitlement to the ashes.
The person in charge of the crematorium can however bury the ashes in a
burial ground if, within 1 year after cremation, the applicant has not
collected them or (where the applicant is a personal representative) given
reasonable written instructions. Before this can occur the person in charge
of the crematorium must give 14 days written notice to the applicant.
Clause 11(5) makes it clear that the return of the ashes to someone other
than the personal representative does not affect anyone else's right to
possess the ashes. The reason why the personal representative has been
excluded from this subclause is because at common law the personal
representative would have an entitlement to the ashes.
The clause is based on section 23F of the Coroners Act 1958.
Clause 12 Record keeping - coroner: Provides that the coroner has to
keep the application for permission to cremate (and any accompanying
documents) and a copy of the permission to cremate on the coroner's file
relating to the investigation of the death.
The document has to be produced to the chief executive when requested.
The chief executive may want the document because there has been an
8
Cremations Bill 2002
allegation that the information on the application was false or misleading
which may warrant a prosecution for an offence under clause 16.
Clause 13 Record keeping - independent doctor: Provides that the
independent doctor must arrange for the application (and accompanying
documents) to be given to the person in charge of the crematorium where
the deceased person is cremated.
The independent doctor would comply with the independent doctor's
obligation under this section if the independent doctor asked the funeral
director to give the material to the person in charge of the crematorium at
the same time that the permission to cremate is given to the person in
charge of the crematorium.
Clause 14 Record keeping person in charge of crematorium: This
clause deals with what records and documents have to be kept by the
person in charge of the crematorium.
Clause 14(1) provides that the person in charge of the crematorium must
keep a record of particulars to be prescribed under a regulation and the
register that the person in charge was obliged to keep under the Coroners
Act 1958.
Clause 14(2) allows for the combination of the record under the under
these provisions with the register under the Coroners Act 1958.
Clause 14(3) provides that the following documents must be kept for 15
years after the cremation:
· if the permission to cremate was issued by an independent doctor
the application for permission to cremate, including any
documents accompanying the application; and
· the permission to cremate; and
· the permissions or certificates required to be kept under the
Coroners Act 1958 provisions.
Clause 14(4) provides that the chief executive can require documents to
be produced for inspection.
Clause 15 Record keeping former owner of crematorium: This
clause deals with what is to happen when during the period that a document
is required to be kept at a crematorium the crematorium ceases to operate.
The clause imposes an obligation on the former owner to ask the chief
executive what is to be done about the storage of the document. The chief
executive must give the former owner written directions about the storage
of the document. The former owner must comply with the directions.
9
Cremations Bill 2002
Clause 16 False or misleading information: This clause provides that a
person must not give information to a coroner or independent doctor that
the person knows is false or misleading. An example of this is that a person
must not falsely state that the person is the person's spouse in an
application for permission to cremate.
Clause 17 Meaning of "de facto partner": This clause provides for a
definition of de facto partner. The effect of the definition and the definition
of spouse in the dictionary is that a de facto partner will have exactly the
same rights under the bill as person who was legally married to a person.
These rights are the right to make an application for cremation and the right
to object to a cremation. The provision is identical to section 32DA of the
Acts Interpretation Act 1954.
"De facto partner" means a person with whom another person is living
as a couple on a genuine domestic basis. The person and the other person
must not be married or related by family. The gender of the two people is
not relevant. Clause 17(2) sets out a non-exhaustive list of factors to be
considered when deciding whether 2 people are living together as a couple
on a genuine domestic basis. These include things such as the length of the
relationship, the degree of financial dependence or interdependence and the
reputation and public aspects of the relationship.
The clause also makes it clear that two persons are not to be regarded as
de facto partners of each other merely because they share a residence.
Clause 17 (6) provides that this section, the definition of "de facto" and
the definition of "spouse" will all expire on commencement of section
32DA of the Acts Interpretation Act 1954.
Clause 18 Approval of forms: Provides that the chief executive may
approve forms for use under the Act. The forms must not contain
advertising material such as a business logo.
Clause 19 Regulationmaking power: Provides for the making of
regulations including:
· regulations prescribing fees ; or
· regulations imposing penalties.
Clause 20 Transitional provision: Provides that if an application for
permission and certificate to cremate is made before commencement,
sections 23A to 23G of the Coroners Act 1958 continue to apply in relation
to the cremation despite the repeal of those sections.
Schedule Dictionary: Provides for the meaning of terms used in the Act.
10
Cremations Bill 2002
"autopsy": the definition refers to autopsies under Queensland coroners'
legislation, the Transplantation and Anatomy Act 1979 and their intestate
and overseas equivalents.
"burial ground": includes a place reserved for the burial of ashes
remaining after a cremation.
"cause of death certificate": means a Queensland cause of death
certificate (defined in the dictionary) or a certificate stating the cause of
death issued by a doctor in other words it includes a certificate issued
outside Queensland.
"close relative" : means
(a) a spouse of the deceased person (which is defined to include a de
facto partner); or
(b) a child of the deceased person who is at least 18 years; or
(c) a parent of the deceased person; or
(d) a brother or sister of the deceased person who is at least 18 years;
or
(e) if the deceased person was an Aboriginal person or Torres Strait
Islander--a person who is an appropriate person according to the
tradition or custom of the community to which the deceased
person belonged.
"coroner": means a coroner under the Coroners Act 2002 or, if the
reference is in the context of the Coroners Act 1958, a coroner under that
Act.
"cremation risk": refers to clause 6(7)
"cremation risk certificate" : means a certificate that
(a) states whether the deceased person's human remains pose a
cremation risk; and
(b) is signed by either--
(i) the doctor who signed the cause of death certificate; or
(ii) if the doctor who signed the cause of death certificate is not
available--another doctor; and
(c) is--
(i) in the approved form; or
11
Cremations Bill 2002
(ii) included on a copy of the cause of death certificate, either as
part of the certificate or as an endorsement on the certificate.
"de facto partner": refers to the meaning given in clause 17.
"doctor": other than in the term independent doctor, includes a person
who, in another State or country is equivalent to a doctor defined in the
Acts Interpretation Act 1954 (defined in turn to mean a person registered
under the Medical Practitioners Registration Act 2001). In other words,
except for the term "independent doctor", "doctor" includes a doctor
from a place outside Queensland.
"human remains" means the remains after death of a human body, or part
of a human body, and includes the body of a stillborn child.
"independent doctor" means a doctor (that is a doctor registered under
the Medical Practitioners Registration Act 2001) who did not sign:
(a) the cause of death certificate; or
(b) the cremation risk certificate.
"medical procedure": means a diagnostic or surgical procedure
"Queensland cause of death certificate": means either of the following
certificates under Registration of Births, Deaths and Marriages Act
1962:
(a) a medical certificate of the cause of death, other than a certificate
mentioned in section 31 of that Act; or
(b) a medical certificate of the cause of peri-natal death, other than a
certificate that section 24(4) of that Act deems not to be a
medical certificate as to the cause of death.
"spouse": includes a de facto partner
"stillborn child": means a child not born alive as defined in the
Registration of Births, Deaths and Marriages Act 1962.
© State of Queensland 2002