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Cremations Bill 2002
CREMATIONS BILL 2002
EXPLANATORY NOTES
AMENDMENTS TO BE MOVED IN COMMITTEE
BY THE HONOURABLE ATTORNEY-GENERAL
AND MINISTER FOR JUSTICE
GENERAL OUTLINE
Title of the Bill
Cremations Bill 2002
Objectives of the Amendments
Following the introduction of the bill, certain groups within the funeral
industry provided further comment on the bill as introduced.
Those comments highlighted:
· that there should not be any doubt about whether an agent can
make the application for permission to cremate on behalf of any
of the persons referred to in clause 6 of the bill
· that procedures regarding the disposal of the ashes should reflect
what occurs in practice
· the need for a number of technical amendments to the bill.
Achievement of the Objectives
Section 23C of the Coroners Act 1958 allows an agent (for example a
funeral director) to make the application for permission to cremate. Clause
6 of the bill carries this over by footnoting that under the general law any of
the persons referred to in clause 6 may act through an agent. Clause 6 of
the bill is being amended to provide in the substantive part of the bill that
an agent can make an application for permission to cremate on behalf of
any of the persons referred to in clause 6. A funeral director is given as an
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Cremations Bill 2002
example of an agent. This will avoid operational disputes about whether an
agent can make the application.
Clause 11 of the bill only allows an applicant personal representative to
give instructions about what is to happen with the ashes. In all other cases
the ashes are to be collected by the applicant. This distinction between
collection and disposal depending on who has made the application was
inserted because at common law it is the personal representative who is
entitled to possession of the ashes for disposal purposes.
However in practice it is usually the applicant, irrespective of whether
he/she is the personal representative, who will be making the decision for
families about disposal of the ashes. This is reflected in section 23F of the
Coroners Act 1958. Clause 11 is therefore being amended to more
accurately reflect what happens by providing that that:
· the ashes are to be dealt with in accordance with the reasonable
written instructions of the applicant
· the clause overrides the common law to the extent that it qualifies
the personal representative's right to decide how to dispose of the
deceased person's human remains (ie the ashes).
As noted above, this is consistent with the current provisions contained
in section 23F of the Coroners Act 1958.
Alternative Ways of Achieving Policy Objectives
There are no alternative ways to achieve the policy objectives of the
amendments.
Administrative cost to Government of implementation
The implementation of the amendments should not raise any
administrative costs to government.
Consistency with Fundamental Legislative Principles
The amendments are consistent with fundamental legislative principles.
Consultation
Some of the amendments are the result of comments by groups within
the funeral industry who provided further comment on the bill as
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Cremations Bill 2002
introduced. The significant amendments have been discussed with the
Department of Premier and Cabinet.
NOTES ON PROVISIONS
Amendment 1 amends clause 5 to provide that the permission to cremate
has to be in the approved form.
Amendment 2 amends clause 6(1) to:
· make it clear that the permission to cremate is a document.
· provide in the substantive part of the clause that an agent can
make the application for permission to cremate on behalf of any
of the persons referred to in clause 6 ; and
· provide that a funeral director is an example of an agent.
Amendment 3 amends clause 6(6) and clause 6(8) by providing that the
permission to cremate has to be in the approved form.
Amendment 4 amends clause 11(1) to 11(3) by providing that:
· the person in charge of the crematorium cannot dispose of the
ashes except in accordance with in any reasonable written
instructions of the applicant; and
· the person in charge of the crematorium now has to give the
applicant 28 days written notice if the person in charge elects to
bury the ashes because no reasonable written instructions have
been received from the applicant within one year after the
cremation.
The removal of the differing procedures governing the disposal of the
ashes depending on whether or not the applicant is the personal
representative more accurately reflects what happens on the ground in
relation to the ashes. This is that all applicants (whether or not they are
personal representatives) will, in the vast majority of cases, be the people
who will be making the decision regarding the disposal of the ashes. It is
consistent with the current provision in section 23F of the Coroners Act
1958.
The change from 14 days to 28 days written notice before the person in
charge of the crematorium can arrange for burial of the ashes in a burial
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Cremations Bill 2002
ground provides applicants with more time to be advised of the proposed
burial.
Amendment 5 amends clause 11(5) to provide that the clause overrides
the common law to the extent that it qualifies the personal representative's
right to decide how to dispose of the deceased person's human remains (ie
the ashes). This amendment is consequential to Amendment 4.
Amendments 6 and 7 amend the definition of "cremation risk certificate"
in the Dictionary in the Schedule to provide that the cremation risk
certificate is to be in the approved form or a notation on a copy of the cause
of death certificate.
© State of Queensland 2003