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PARLIAMENT OF VICTORIA
Cemeteries and Crematoria Amendment Bill 2009
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1 Purpose 1
2 Commencement 2
PART 2--CEMETERY TRUSTS 3
3 New section 2A inserted 3
2A Objects 3
4 Definitions 3
5 Establishment of cemetery trusts 4
6 New section 5A inserted 5
5A Conversion of certain regional cemetery trusts to
Class A cemetery trusts 5
7 New section 5B inserted 5
5B Abolition of certain cemetery trusts and establishment
of new Class A cemetery trusts 5
8 Constitution and membership of cemetery trusts 5
9 New section 6A inserted 5
6A Constitution and membership of Class A cemetery
trusts 5
10 New section 6B inserted 6
6B Cemetery trusts are Class B cemetery trusts unless
order or Act otherwise specifies 6
11 Management of public cemeteries 6
12 Effect of order abolishing cemetery trust 7
13 New section 9A inserted 7
9A Conversion order--Class A cemetery trust or
Class B cemetery trust 7
14 Appointment of an administrator 9
15 Membership of cemetery trust not office of profit 10
16 Functions of cemetery trusts 11
17 New sections 12A and 12B inserted 11
12A Functions of Class A cemetery trusts 11
12B Application of Public Administration Act 2004--
converted cemetery trusts 14
18 Staff and other assistance 14
561417B.I-28/7/2009 i BILL LA INTRODUCTION 28/7/2009
Clause Page
19 Secretary may give directions to cemetery trusts 14
20 New section 18A inserted 15
18A Secretary to develop policies and plans for cemetery
and crematoria sector 15
21 New Part 2A 16
PART 2A--ADDITIONAL REQUIREMENTS FOR
CLASS A CEMETERY TRUSTS 16
18B Establishment and functions of governance committees 16
18C Membership and procedure 17
18D Community advisory committees 17
18E Functions of community advisory committee 18
18F Membership and procedure of community advisory
committees 19
18G Community advisory committee guidelines 19
18H Annual meeting 20
18I Notice of annual meeting 20
18J Leadership role for Class B cemetery trusts 21
18K Listed Class B cemetery trusts 22
18L Chief executive officer 22
18M Chief executive officer's functions 23
18N Annual plans 24
18O Strategic plans 26
18P Annual plan and strategic plan guidelines 27
18Q Payment of levy 28
22 Schedule 1 amended 29
23 New Schedule 1A inserted 30
SCHEDULE 1A--Membership and Procedure of Class A
Cemetery Trusts 30
1 Terms of appointment 30
2 Chairperson of Class A cemetery trust 30
3 Resignation and removal of members 31
4 Vacancies in membership 31
5 Remuneration, fees and allowances of members 31
6 Validity of decisions of cemetery trusts 32
7 Presiding at meetings of Class A cemetery trusts 33
8 Proceedings of Class A cemetery trusts 33
9 Disclosure of interest of Class A cemetery trust
members 34
24 New Schedule 3 inserted 35
SCHEDULE 3--Regional Class A cemetery Trusts 35
1 Application of Schedule 35
2 Conversion to Class A cemetery trusts 35
3 Trust members 36
4 Property and staff 38
561417B.I-28/7/2009 ii BILL LA INTRODUCTION 28/7/2009
Clause Page
5 Amendment of Register 39
6 Validity of things done under this Schedule 39
25 New Schedule 4 inserted 41
SCHEDULE 4--Abolition of Certain Cemetery Trusts and
Establishment of New Class A Cemetery
Trusts 41
PART 1--PRELIMINARY 41
1 Definitions 41
2 Appointed days 45
PART 2--ESTABLISHMENT OF CLASS A CEMETERY
TRUSTS 45
3 The Mildura Cemetery Trust 45
4 The Greater Metropolitan Cemeteries Trust 46
5 The Southern Metropolitan Cemeteries Trust 47
6 Substitution of party to agreement 48
7 Former instruments 50
8 Proceedings 50
9 Interests in land 51
10 Transfer order--former council managed cemetery
trusts 53
11 Effect of transfer order 54
12 Interim CEO 56
13 Transfer of staff 57
14 Future terms and conditions of staff 61
15 Listed employees 61
16 Staff transfer date 63
17 Transfer of listed employees 63
18 Future terms and conditions of transferred listed
employees 65
19 Cemetery trust fees 65
20 Construction of references 66
PART 3--GENERAL 67
21 Amendment of Register 67
22 Taxes 68
23 Validity of things done under this Schedule 68
PART 3--MISCELLANEOUS AMENDMENTS 70
26 Definitions 70
27 Establishment of public cemeteries 70
28 Power to fix fees and charges 71
29 Secretary to approve fees and charges 71
561417B.I-28/7/2009 iii BILL LA INTRODUCTION 28/7/2009
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30 New section 40A inserted 71
40A Secretary may exempt certain fees and charges from
approval 71
31 New section 42A inserted 72
42A Fees and charges guidelines 72
32 Fees and charges to increase by CPI 73
33 Application of Division 74
34 Accounts and records 74
35 Auditing 74
36 Secretary may ask for investigation 75
37 New sections 51A to 51E inserted 75
51A Secretary to determine terms of reference and other
matters 75
51B Auditor's authority 76
51C Powers of auditors 76
51D Report to Secretary 77
51E Confidentiality requirements 78
38 New section 52A inserted 79
52A Class A cemetery trust--operational report 79
39 New sections 64A and 64B inserted 79
64A Order reopening closed cemetery 79
64B Effect of order reopening a closed cemetery 80
40 Surrender to cemetery trust of unexercised right of interment
by sole holder 81
41 Surrender to cemetery trust of exercised right of interment
by sole holder 81
42 Application to carry out lift and re-position procedure 82
43 Statute law revision 82
PART 4--GENERAL 83
44 Repeal of amending Act 83
ENDNOTES 84
561417B.I-28/7/2009 iv BILL LA INTRODUCTION 28/7/2009
PARLIAMENT OF VICTORIA
Introduced in the Assembly
Cemeteries and Crematoria
Amendment Bill 2009
A Bill for an Act to amend the Cemeteries and Crematoria Act 2003
to further provide for the management and constitution of cemetery
trusts and make other miscellaneous amendments to that Act and for
other purposes.
The Parliament of Victoria enacts:
PART 1--PRELIMINARY
1 Purpose
The main purpose of this Act is to amend the
Cemeteries and Crematoria Act 2003 to further
5 provide for the management and constitution of
cemetery trusts and make other miscellaneous
amendments to that Act.
561417B.I-28/7/2009 1 BILL LA INTRODUCTION 28/7/2009
Cemeteries and Crematoria Amendment Bill 2009
Part 1--Preliminary
s. 2
2 Commencement
(1) Subject to subsection (2), this Act comes into
operation on a day or days to be proclaimed.
(2) If a provision referred to in subsection (1) does
5 not come into operation before 1 July 2010, it
comes into operation on that day.
__________________
561417B.I-28/7/2009 2 BILL LA INTRODUCTION 28/7/2009
Cemeteries and Crematoria Amendment Bill 2009
Part 2--Cemetery Trusts
s. 3
PART 2--CEMETERY TRUSTS
3 New section 2A inserted
After section 2 of the Cemeteries and See:
Act No.
Crematoria Act 2003 insert-- 80/2003.
Reprint No. 1
5 "2A Objects as at
1 February
The objects of this Act are to ensure that-- 2008
and
(a) human remains are treated with dignity amending
Act Nos
and respect; 46/2008 and
77/2008
(b) all Victorians have access to cemetery LawToday:
www.
10 and crematoria services; legislation.
vic.gov.au
(c) cemetery trusts operate effectively and
efficiently in accordance with this
Act.".
4 Definitions
15 (1) In section 3(1) of the Cemeteries and
Crematoria Act 2003, insert the following
definitions--
"Class A cemetery trust means a cemetery trust
established as a Class A cemetery trust under
20 Part 2 or Schedule 4 or converted under
Schedule 3;
Class B cemetery trust means a cemetery trust
other than a Class A cemetery trust;
community advisory committee means an
25 advisory committee established by a Class A
cemetery trust under section 18D;
community advisory committee guidelines means
guidelines made by the Secretary under
section 18G;
561417B.I-28/7/2009 3 BILL LA INTRODUCTION 28/7/2009
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Part 2--Cemetery Trusts
s. 5
conversion order means an order made under
section 9A;
governance committee means a governance
committee established by a Class A cemetery
5 trust under section 18B;
listed Class B cemetery trust means a Class B
cemetery trust included on a list prepared by
the Secretary under section 18K;".
(2) In section 3(1) of the Cemeteries and
10 Crematoria Act 2003, for the definition of
cemetery trust substitute--
"cemetery trust means a cemetery trust
established under Part 2 and includes a
Class A cemetery trust and a Class B
15 cemetery trust;".
5 Establishment of cemetery trusts
After section 5(1) of the Cemeteries and
Crematoria Act 2003 insert--
"(1A) An order under subsection (1)--
20 (a) must specify whether the cemetery trust
is a Class A cemetery trust or a Class B
cemetery trust;
(b) may make provision for any other
matter which, in the opinion of the
25 Governor in Council, is necessary or
expedient for the effective operation of
that order;
(c) may include savings, transitional or
consequential provisions to facilitate
30 the operation of the order.".
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Part 2--Cemetery Trusts
s. 6
6 New section 5A inserted
After section 5 of the Cemeteries and
Crematoria Act 2003 insert--
"5A Conversion of certain regional cemetery
5 trusts to Class A cemetery trusts
Schedule 3 has effect.".
7 New section 5B inserted
Before section 6 of the Cemeteries and
Crematoria Act 2003 insert--
10 "5B Abolition of certain cemetery trusts and
establishment of new Class A cemetery
trusts
Schedule 4 has effect.".
8 Constitution and membership of cemetery trusts
15 (1) For the heading to section 6 of the Cemeteries
and Crematoria Act 2003 substitute--
"Constitution and membership of Class B
cemetery trusts".
(2) In section 6 of the Cemeteries and Crematoria
20 Act 2003, for "cemetery trust" (wherever
occurring) substitute "Class B cemetery trust".
9 New section 6A inserted
After section 6 of the Cemeteries and
Crematoria Act 2003 insert--
25 "6A Constitution and membership of Class A
cemetery trusts
(1) A Class A cemetery trust consists of not less
than 6 and not more than 9 members
appointed by the Governor in Council on the
30 recommendation of the Minister.
561417B.I-28/7/2009 5 BILL LA INTRODUCTION 28/7/2009
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Part 2--Cemetery Trusts
s. 10
(2) In making a recommendation under
subsection (1), the Minister must ensure that
any appointment contributes to the Class A
cemetery trust collectively having the skills
5 and expertise required to perform its
functions.
(3) Schedule 1A has effect with respect to the
membership and procedure of a Class A
cemetery trust.".
10 10 New section 6B inserted
Before section 7 of the Cemeteries and
Crematoria Act 2003 insert--
"6B Cemetery trusts are Class B cemetery
trusts unless order or Act otherwise
15 specifies
On and from the commencement of
section 10 of the Cemeteries and
Crematoria Amendment Act 2009, a
cemetery trust in existence at that
20 commencement is taken to be a Class B
cemetery trust unless this Act or any
subsequent order made under this Act
otherwise specifies.".
11 Management of public cemeteries
25 (1) In section 8(1) of the Cemeteries and
Crematoria Act 2003--
(a) for "The Governor" substitute "On the
recommendation of the Minister, the
Governor";
30 (b) for paragraph (d) substitute--
"(d) may abolish a cemetery trust and
transfer all its assets and liabilities to
another cemetery trust, a municipal
council or to another entity, including
35 the State of Victoria;
561417B.I-28/7/2009 6 BILL LA INTRODUCTION 28/7/2009
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Part 2--Cemetery Trusts
s. 12
(e) may abolish a cemetery trust.
Note
Section 5 provides for the establishment of
cemetery trusts.".
5 (2) After section 8(2)(a) of the Cemeteries and
Crematoria Act 2003 insert--
"(ab) may apply to a single cemetery trust or
multiple cemetery trusts; and
(ac) may provide for--
10 (i) the appointment of new members to a
cemetery trust;
(ii) the removal of members from a
cemetery trust; and".
12 Effect of order abolishing cemetery trust
15 In section 9 of the Cemeteries and Crematoria
Act 2003--
(a) in paragraph (a) after "abolished" insert "and
its members go out of office";
(b) in paragraph (b) for "the cemetery trust"
20 substitute "in the case of an order under
section 8(1)(d), the cemetery trust";
(c) in paragraph (c) before "unless" insert
"in the case of an order under section
8(1)(d),".
25 13 New section 9A inserted
After section 9 of the Cemeteries and
Crematoria Act 2003 insert--
"9A Conversion order--Class A cemetery
trust or Class B cemetery trust
30 (1) On the recommendation of the Minister, the
Governor in Council, by order published in
the Government Gazette, may convert--
561417B.I-28/7/2009 7 BILL LA INTRODUCTION 28/7/2009
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Part 2--Cemetery Trusts
s. 13
(a) a Class A cemetery trust to a Class B
cemetery trust;
(b) a Class B cemetery trust to a Class A
cemetery trust.
5 (2) The Minister must not recommend the
making of a conversion order unless satisfied
that the order is in the public interest having
regard to--
(a) the objects of this Act;
10 (b) the size or scale of the operations of the
cemetery trust;
(c) the services provided, or to be
provided, by the cemetery trust;
(d) the communities served, or to be
15 served, by the cemetery trust;
(e) any other matters the Minister
considers relevant.
(3) A conversion order--
(a) may apply to a single cemetery trust or
20 multiple cemetery trusts;
(b) may change the name of a cemetery
trust;
(c) may provide for--
(i) the appointment of new members
25 to a cemetery trust;
(ii) the removal of members from a
cemetery trust;
(d) may provide for the transfer of--
(i) assets and liabilities (whether
30 contingent or otherwise);
(ii) duties and obligations in relation
to staff;
561417B.I-28/7/2009 8 BILL LA INTRODUCTION 28/7/2009
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Part 2--Cemetery Trusts
s. 14
(iii) duties and obligations under
contracts or other arrangements;
(iv) records and registers;
(e) may make provision for any other
5 matter which, in the opinion of the
Governor in Council, is necessary or
expedient for the effective operation of
the order;
(f) may include savings, transitional or
10 consequential provisions to facilitate
the operation of the order.
(4) A conversion order takes effect--
(a) on the date the order is published in the
Government Gazette; or
15 (b) if a later date is specified in the order,
on that later date.".
14 Appointment of an administrator
(1) For section 10(2) of the Cemeteries and
Crematoria Act 2003 substitute--
20 "(2) The Minister may only make a
recommendation referred to in subsection (1)
in respect of a public cemetery managed by a
Class B cemetery trust if, in his or her
opinion--
25 (a) the public cemetery is being
inefficiently or incompetently
managed; or
(b) the appointment is necessary to protect
the interests of the public; or
30 (c) the Class B cemetery trust has failed to
comply with a direction under
section 18 or 50 and that failure
justifies the appointment of an
administrator; or
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Part 2--Cemetery Trusts
s. 15
(d) after an audit under section 50 or an
audit or investigation under section 51
has been conducted into the Class B
cemetery trust, the outcome of that
5 audit or investigation justifies the
appointment of an administrator.
(2A) The Minister may only make a
recommendation referred to in subsection (1)
in respect of a public cemetery managed by a
10 Class A cemetery trust if, in his or her
opinion--
(a) the public cemetery is being
inefficiently or incompetently
managed; or
15 (b) the appointment is necessary to protect
the interests of the public; or
(c) the Class A cemetery trust has failed
significantly to meet its outcomes as
specified in its annual plan; or
20 (d) the Class A cemetery trust has failed to
comply with a direction under section
18 and that failure justifies the
appointment of an administrator; or
(e) after an audit or an investigation has
25 been conducted under section 51 into
the Class A cemetery trust, the outcome
of that audit or investigation justifies
the appointment of an administrator.".
15 Membership of cemetery trust not office of profit
30 In section 11 of the Cemeteries and Crematoria
Act 2003 for "cemetery trust" substitute "Class B
cemetery trust".
561417B.I-28/7/2009 10 BILL LA INTRODUCTION 28/7/2009
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Part 2--Cemetery Trusts
s. 16
16 Functions of cemetery trusts
(1) In the heading to section 12 of the Cemeteries
and Crematoria Act 2003 for "cemetery trusts"
substitute "Class B cemetery trusts".
5 (2) In section 12 of the Cemeteries and Crematoria
Act 2003 for "cemetery trust" (wherever
occurring) substitute "Class B cemetery trust".
17 New sections 12A and 12B inserted
After section 12 of the Cemeteries and
10 Crematoria Act 2003 insert--
"12A Functions of Class A cemetery trusts
(1) The functions of a Class A cemetery trust
are--
(a) to properly and efficiently manage and
15 maintain each public cemetery for
which it is responsible;
(b) to develop, in accordance with this Act,
annual plans and strategic plans for the
operation of the trust and to monitor
20 compliance with those plans;
(c) to develop annual business plans,
strategies and budgets to ensure the
efficient and accountable provision of
services under the Act and the long
25 term viability of the cemetery trust;
(d) to establish and maintain effective
systems to ensure that--
(i) the services provided by the
cemetery trust meet the needs of
30 the communities which it serves;
and
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Part 2--Cemetery Trusts
s. 17
(ii) the views of those communities
are taken into account;
(e) to oversee the organisational structure
of the cemetery trust;
5 (f) to employ a chief executive officer (by
whatever title called) for the effective
operation and management of the
cemetery trust and each public
cemetery for which it is responsible;
10 (g) to monitor the performance of the chief
executive officer;
(h) to ensure there are systems in place to
enable effective and accountable risk
management, financial management
15 and records management of the
cemetery trust;
(i) to provide leadership, assistance and
advice as requested to listed Class B
cemetery trusts;
20 (j) to establish committees in accordance
with the Act and ensure those
committees operate effectively;
(k) to ensure the Secretary is informed as
soon as practicable of--
25 (i) any significant issues of public
concern in relation to the cemetery
trust, cemetery or crematoria
services provided by that cemetery
trust or the public cemeteries for
30 which that cemetery trust is
responsible; or
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Part 2--Cemetery Trusts
s. 17
(ii) any significant risks that affect, or
may affect, the cemetery trust or
cemetery or crematoria services
provided by that cemetery trust or
5 the public cemeteries for which
that cemetery trust is responsible;
(l) to develop or adopt a code of conduct
for members of the cemetery trust and
for staff of the trust;
10 (m) to ensure members of the cemetery trust
receive adequate training to enable
them to meet their obligations as
members of the cemetery trust;
(n) to carry out any other function
15 conferred on a Class A cemetery trust
by or under this Act or any other Act.
(2) In exercising its functions, a Class A
cemetery trust must have regard to--
(a) its obligations in relation to funding of
20 the perpetual maintenance of the public
cemetery for which it is responsible;
and
(b) the cultural values and religious values
(if any) of the community; and
25 (c) the heritage values (if any) of the public
cemetery for which it is responsible;
and
(d) the need to ensure that it uses its
resources in an effective and efficient
30 manner; and
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Part 2--Cemetery Trusts
s. 18
(e) the need to ensure that public resources
across the cemeteries and crematoria
sector are used effectively and
efficiently.
5 12B Application of Public Administration Act
2004--converted cemetery trusts
Without limiting the operation of
Schedule 1A, the Public Administration
Act 2004 applies to a cemetery trust
10 (whenever established) that is converted
under this Act to a Class A cemetery trust
and for that purpose, that Class A cemetery
trust is a public entity, but not a small entity,
within the meaning of that Act.".
15 18 Staff and other assistance
After section 17(2) of the Cemeteries and
Crematoria Act 2003 insert--
"(3) The terms and conditions of employment or
engagement are as determined by the
20 cemetery trust, subject to any guidelines or
directions of the Secretary notified to the
cemetery trust.".
19 Secretary may give directions to cemetery trusts
(1) After section 18(1)(a) of the Cemeteries and
25 Crematoria Act 2003 insert --
"(ab) the management, operation or governance of
the cemetery trust in accordance with this
Act; and
(ac) any matter arising as a result of an audit
30 under section 50 or an audit or investigation
under section 51; and".
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Part 2--Cemetery Trusts
s. 20
(2) After section 18(3) of the Cemeteries and
Crematoria Act 2003 insert--
"(4) A direction given under this section must
not--
5 (a) refer to the cemetery services or
crematoria services provided, or
proposed to be provided, by a cemetery
trust to a particular person; or
(b) refer to a decision made under the Act
10 by a cemetery trust in relation to a
particular person; or
(c) refer to a decision by a cemetery trust
to employ or engage a particular
person; or
15 (d) require the supply of goods or services
to a cemetery trust by any particular
person or other entity unless the supply
is in accordance with a tender
process.".
20 20 New section 18A inserted
After section 18 of the Cemeteries and
Crematoria Act 2003 insert--
"18A Secretary to develop policies and plans for
cemetery and crematoria sector
25 (1) For the purposes of long term planning, the
Secretary, from time to time, may cause to
be developed and prepared policies and plans
in relation to the provision of cemetery
services and crematoria services.
30 (2) Policies and plans under subsection (1)
may--
(a) apply on a Statewide, regional or local
basis; and
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Part 2--Cemetery Trusts
s. 21
(b) apply to--
(i) Class A cemetery trusts; or
(ii) Class B cemetery trusts; or
(iii) both Class A cemetery trusts and
5 Class B cemetery trusts.".
21 New Part 2A
After Part 2 of the Cemeteries and Crematoria
Act 2003 insert--
"PART 2A--ADDITIONAL REQUIREMENTS
10 FOR CLASS A CEMETERY TRUSTS
18B Establishment and functions of
governance committees
(1) A Class A cemetery trust--
(a) must establish--
15 (i) a finance committee; and
(ii) an audit and risk committee; and
(b) may establish any other governance
committee as it determines from time to
time.
20 (2) A Class A cemetery trust must establish the
governance committees referred to in
subsection (1)(a) within 12 months of the
Class A cemetery trust becoming a Class A
cemetery trust.
25 (3) A governance committee--
(a) must consider any matters that are
referred to it by the Class A cemetery
trust; and
(b) may investigate and make any inquiries
30 about any matter referred to it by the
Class A cemetery trust; and
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Part 2--Cemetery Trusts
s. 21
(c) must report back to the Class A
cemetery trust as required by the
cemetery trust; and
(d) must carry out any other functions
5 conferred on a governance
committee--
(i) under this Act or any other Act; or
(ii) by the Class A cemetery trust.
(4) Subsection (1)(a)(ii) does not apply to a
10 Class A cemetery trust to which an
exemption under the Financial
Management Act 1994 with respect to
governance committees applies.
18C Membership and procedure
15 (1) The membership of any governance
committee is to be determined by the
Class A cemetery trust.
(2) Subject to this Act or any other Act which
imposes requirements in relation to
20 governance committees, and except as
otherwise determined by the Class A
cemetery trust, the procedure of any
governance committee is to be determined
by the committee.
25 Note
There may be requirements under the Financial
Management Act 1994 and other legislation.
18D Community advisory committees
(1) For the purpose of liaising with communities
30 to which a Class A cemetery trust provides
cemetery or crematoria services, a Class A
cemetery trust--
(a) must appoint one community advisory
committee; and
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Part 2--Cemetery Trusts
s. 21
(b) may appoint any additional community
advisory committees it considers
appropriate.
(2) A Class A cemetery trust must establish a
5 community advisory committee referred to in
subsection (1)(a) within 12 months of the
Class A cemetery trust becoming a Class A
cemetery trust.
(3) A Class A cemetery trust must include in its
10 report of operations under Part 7 of the
Financial Management Act 1994 a report
on the activities of its community advisory
committees.
18E Functions of community advisory
15 committee
The functions of a community advisory
committee are--
(a) to consider any matters that are referred
to it by the Class A cemetery trust
20 which established it;
(b) to report to the Class A cemetery trust
on those matters;
(c) to raise with the Class A cemetery trust
any issues of concern or matters of
25 interest to the community regarding the
cemetery or crematoria services
provided by the Class A cemetery trust;
(d) to carry out any other functions
conferred on it--
30 (i) under this Act; or
(ii) by the community advisory
committee guidelines; or
(iii) by the Class A cemetery trust.
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s. 21
18F Membership and procedure of community
advisory committees
(1) A community advisory committee consists
of the persons appointed by the Class A
5 cemetery trust, having regard to the
community advisory committee guidelines.
(2) In appointing a person to a community
advisory committee, a Class A cemetery trust
must give preference to a person who is not a
10 funeral director or a stonemason or the
holder of a similar position.
(3) A community advisory committee may
regulate its own proceedings subject to--
(a) this Act; and
15 (b) any directions of the Class A cemetery
trust which established the community
advisory committee; and
(c) the community advisory committee
guidelines.
20 18G Community advisory committee
guidelines
(1) The Secretary must make guidelines for or
with respect to community advisory
committees, including but not limited to--
25 (a) the appointment of members of
community advisory committees;
(b) the composition, roles and functions of
community advisory committees;
(c) the procedure of community advisory
30 committees;
(d) any other matter relating to the
operation of community advisory
committees.
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Part 2--Cemetery Trusts
s. 21
(2) The Secretary must cause the community
advisory committee guidelines--
(a) to be provided to each Class A
cemetery trust; and
5 (b) to be published on the Internet.
(3) The community advisory committee
guidelines take effect on the date specified in
the guidelines.
18H Annual meeting
10 (1) A Class A cemetery trust must hold an
annual meeting before 30 December in each
calendar year.
(2) An annual meeting is to be open to the
public.
15 (3) At an annual meeting, a Class A cemetery
trust must--
(a) report to the public on the operation of
that cemetery trust for the preceding
financial year; and
20 (b) make the cemetery trust's most recent
annual report available; and
(c) report to the public on the accounts of
the cemetery trust; and
(d) report to the public on the activities of
25 any community advisory committee of
the cemetery trust.
18I Notice of annual meeting
(1) A reasonable time before the date of the
annual meeting of a Class A cemetery trust,
30 the cemetery trust must publish a public
notice in a newspaper circulating in the
relevant area of the holding of the annual
meeting of that Class A cemetery trust.
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Part 2--Cemetery Trusts
s. 21
(2) A public notice published under subsection
(1) must state--
(a) the time, date and place of the annual
meeting of the Class A cemetery trust;
5 and
(b) that the annual meeting is open to the
public.
18J Leadership role for Class B cemetery
trusts
10 (1) A Class A cemetery trust must provide
leadership, assistance and advice in relation
to operational and governance matters
relating to cemeteries, as requested, to a
listed Class B cemetery trust to which the
15 Class A cemetery trust has been allocated.
(2) Without limiting the matters on which a
Class A cemetery trust may provide advice, a
Class A cemetery trust may provide a listed
Class B cemetery trust with assistance and
20 advice about the following--
(a) record keeping systems suited to the
requirements of cemetery trusts;
(b) standard form documentation suitable
for cemetery trust purposes;
25 Example
Standard form contracts of sale for graves and
other places of interment, including niches for
cremated remains.
(c) tendering and contracting processes and
30 requirements.
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s. 21
18K Listed Class B cemetery trusts
(1) The Secretary may prepare a list of Class B
cemetery trusts which are eligible to receive
leadership, assistance and advice from Class
5 A cemetery trusts.
(2) The Secretary--
(a) must specify in the list prepared under
subsection (1) which Class A cemetery
trust has the leadership, assistance and
10 advice role in relation to which Class B
cemetery trust;
(b) may amend the list as the Secretary
considers appropriate by--
(i) adding, varying or deleting names
15 of cemetery trusts from the list; or
(ii) allocating different Class B
cemetery trusts to different Class
A cemetery trusts.
(3) The Secretary must cause the list prepared
20 under subsection (1)--
(a) to be provided to each Class A
cemetery trust; and
(b) to be published on the Internet.
(4) The list prepared under subsection (1) takes
25 effect on the date specified in the list.
18L Chief executive officer
(1) A Class A cemetery trust must employ a
person as the chief executive officer
(by whatever title called) of the Class A
30 cemetery trust.
(2) The chief executive officer holds office--
(a) for the period determined by the Class
A cemetery trust; and
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Part 2--Cemetery Trusts
s. 21
(b) subject to subsection (3), on the terms
and conditions, including remuneration,
determined by the Class A cemetery
trust.
5 (3) The Secretary must approve the terms and
conditions, including remuneration, of the
chief executive officer of a Class A cemetery
trust before a person is employed as chief
executive officer.
10 18M Chief executive officer's functions
(1) The chief executive officer of a Class A
cemetery trust must--
(a) prepare material for the consideration
and approval of the cemetery trust,
15 including--
(i) draft annual plans;
(ii) draft strategic plans;
(iii) draft business plans and strategies;
(iv) budgets;
20 (b) manage the cemetery trust in
accordance with any annual plans,
strategic plans, business plans and
strategies and budgets approved by the
cemetery trust;
25 (c) provide the Class A cemetery trust with
relevant and timely information to
enable the cemetery trust to fulfil its
functions and objectives efficiently and
effectively;
30 (d) ensure the Class A cemetery trust's
decisions are implemented efficiently
and effectively;
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(e) inform the Class A cemetery trust of--
(i) any significant issues of public
concern in relation to the cemetery
trust, cemetery or crematoria
5 services provided by that cemetery
trust or the public cemeteries for
which that cemetery trust is
responsible; or
(ii) any significant risks that affect, or
10 may affect, the cemetery trust,
cemetery or crematoria services
provided by that cemetery trust or
the public cemeteries for which
that cemetery trust is responsible;
15 (f) ensure that the resources of the Class A
cemetery trust are used effectively and
efficiently.
(2) In the exercise of his or her functions, the
chief executive officer is subject to the
20 direction of the Class A cemetery trust.
18N Annual plans
(1) A Class A cemetery trust must prepare an
annual plan for each financial year that
specifies--
25 (a) the objectives, priorities and key
performance outcomes to be met by the
Class A cemetery trust during the
relevant year; and
(b) the performance indicators or other
30 measures against which the Class A
cemetery trust's performance is to be
assessed and monitored; and
561417B.I-28/7/2009 24 BILL LA INTRODUCTION 28/7/2009
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Part 2--Cemetery Trusts
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(c) how and when the Class A cemetery
trust is to report on its performance in
relation to the specified objectives,
priorities and key performance
5 outcomes; and
(d) any other matters agreed to by the
Minister and the Class A cemetery from
time to time.
(2) An annual plan must be consistent with--
10 (a) the strategic plan of the Class A
cemetery trust; and
(b) the guidelines made by the Secretary
under section 18P, if any.
(3) A Class A cemetery trust must give a copy of
15 the proposed annual plan to the Secretary on
or before 30 September each year for the
Secretary's approval.
(4) On the submission of a proposed annual plan
under subsection (3), the Secretary may--
20 (a) approve the annual plan; or
(b) refer the annual plan back to the
cemetery trust for amendment in
accordance with any comments or
directions the Secretary may give.
25 (5) If the Secretary refers an annual plan back to
a Class A cemetery trust under subsection
(4)(b), the Class A cemetery trust must--
(a) make the amendments required by the
Secretary; and
30 (b) deliver the completed annual plan to the
Secretary within 3 months after it was
submitted to the Secretary under
subsection (3).
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Part 2--Cemetery Trusts
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(6) On receipt of a completed annual plan under
subsection (5)(b), the Secretary--
(a) may approve the annual plan; or
(b) if the Secretary requires further
5 amendments--
(i) may refer the annual plan back to
the Class A cemetery trust; and
(ii) this section applies to that second
referral and any subsequent
10 referral, with any necessary
modifications.
(7) A Class A cemetery trust must ensure that an
approved annual plan for that cemetery trust
is available to members of the public on
15 request.
18O Strategic plans
(1) A Class A cemetery trust must--
(a) prepare a strategic plan for the
management and operation of the
20 cemetery trust and the public
cemeteries for which it is responsible;
and
(b) submit that strategic plan to the
Secretary for approval.
25 (2) A strategic plan developed by a Class A
cemetery trust must be prepared--
(a) at the direction of the Secretary; and
(b) at the time or times determined by the
Secretary; and
30 (c) in accordance with any guidelines
prepared by the Secretary under
section 18P.
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Part 2--Cemetery Trusts
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(3) The Secretary may--
(a) approve a strategic plan; or
(b) approve a strategic plan with
amendments; or
5 (c) refuse to approve a strategic plan.
(4) A Class A cemetery trust must advise the
Secretary if it wishes to exercise its functions
in a manner inconsistent with its approved
strategic plan.
10 (5) A Class A cemetery trust must ensure that an
approved strategic plan for that cemetery
trust is available to members of the public on
request.
18P Annual plan and strategic plan guidelines
15 (1) The Secretary may make guidelines for or
with respect to--
(a) the content of annual plans;
(b) the content and timing of strategic plans
for Class A cemetery trusts;
20 (c) any other matters relating to annual
plans or strategic plans.
(2) The Secretary must cause the annual plan
and strategic plan guidelines--
(a) to be provided to each Class A
25 cemetery trust; and
(b) to be published on the Internet.
(3) The annual plan and strategic plan guidelines
take effect on the date specified in the
guidelines.
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18Q Payment of levy
(1) For the purposes of assisting in defraying the
costs of administering this Act, making
improvements in cemetery trust governance
5 and administration and the provision of
services to the community, each Class A
cemetery trust must pay an annual levy on its
gross earnings as reported in the annual
financial statements for that Class A
10 cemetery trust for the previous financial
year.
(2) The annual levy payable under subsection
(1) is--
(a) 3 per cent; or
15 (b) if any other amount is fixed for the
purposes of this section by the Minister
by notice published in the Government
Gazette, that amount.
(3) An amount fixed under subsection (2)(b)
20 must not exceed 5 per cent.
(4) The Minister must give each Class A
cemetery trust a written notice setting out--
(a) the amount it is required to pay as levy
in respect of a specified period; and
25 (b) the date by which the amount is
required to be paid; and
(c) how the payment is to be made.
(5) The Minister must ensure that all amounts
paid as levy are paid into the Consolidated
30 Fund.
__________________".
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Part 2--Cemetery Trusts
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22 Schedule 1 amended
(1) In the heading to Schedule 1 to the Cemeteries
and Crematoria Act 2003, after "OF" insert
"CLASS B".
5 (2) In Schedule 1 to the Cemeteries and Crematoria
Act 2003--
(a) in the heading to clause 1 after "of" insert
"Class B";
(b) in clause 1 for "cemetery trust" (wherever
10 occurring) substitute "Class B cemetery
trust";
(c) in the heading to clause 2 after "of" insert
"Class B";
(d) in clauses 2 and 3 for "cemetery trust"
15 (wherever occurring) substitute "Class B
cemetery trust";
(e) in the heading to clause 4 after "of" insert
"Class B";
(f) in clauses 4 and 5 for "cemetery trust"
20 (wherever occurring) substitute "Class B
cemetery trust";
(g) in the heading to clause 6 after "of" insert
"Class B";
(h) in clause 6 for "cemetery trust" substitute
25 "Class B cemetery trust";
(i) in the heading to clause 7 after "of" insert
"Class B";
(j) in clause 7 for "cemetery trust" substitute
"Class B cemetery trust";
30 (k) in the heading to clause 8 after "of" insert
"Class B";
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Part 2--Cemetery Trusts
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(l) in clause 8 for "cemetery trust" (wherever
occurring) substitute "Class B cemetery
trust";
(m) in the heading to clause 9 after "of" insert
5 "Class B";
(n) in clause 9 for "cemetery trust" (wherever
occurring) substitute "Class B cemetery
trust".
23 New Schedule 1A inserted
10 After Schedule 1 to the Cemeteries and
Crematoria Act 2003 insert--
"SCHEDULE 1A
Section 6A(3)
MEMBERSHIP AND PROCEDURE OF CLASS A
15 CEMETERY TRUSTS
1 Terms of appointment
(1) A member of a Class A cemetery trust holds
office for the period, not exceeding 3 years,
specified in the instrument of his or her
20 appointment.
(2) A member of a Class A cemetery trust is
eligible for re-appointment.
(3) A member of a Class A cemetery trust is
appointed on the terms and conditions
25 specified in the instrument of appointment.
(4) The Public Administration Act 2004 (other
than Part 3 of that Act) applies to a member
in respect of the office of member.
2 Chairperson of Class A cemetery trust
30 (1) The Governor in Council, by instrument,
must appoint one of the members of a
Class A cemetery trust to be chairperson.
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Part 2--Cemetery Trusts
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(2) A person appointed as chairperson of a
Class A cemetery trust--
(a) holds that office for the period not
exceeding 3 years; and
5 (b) is eligible for re-appointment.
(3) A person appointed as chairperson ceases to
hold that office--
(a) on ceasing to be a member of the
Class A cemetery trust; or
10 (b) on resigning as chairperson but
remaining as a member; or
(c) on the expiry of his or her appointment
as chairperson.
3 Resignation and removal of members
15 (1) A member of a Class A cemetery trust may
resign the office of member by writing
signed by the member and addressed to the
Minister.
(2) The Governor in Council, on the
20 recommendation of the Minister, may at any
time remove a member of a Class A
cemetery trust from office.
4 Vacancies in membership
If a member of a Class A cemetery trust dies,
25 resigns or is removed from office, the
Governor in Council, in accordance with this
Act, may fill the vacant office.
5 Remuneration, fees and allowances of
members
30 (1) A member of a Class A cemetery trust is
entitled to be paid any remuneration fixed for
that member from time to time by the
Governor in Council, whether--
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Part 2--Cemetery Trusts
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(a) in the member's instrument of
appointment; or
(b) by order published in the Government
Gazette.
5 (2) A member of a Class A cemetery trust is
entitled to receive reimbursement of
reasonable expenses incurred in that office.
(3) Any amounts paid to a member of a Class A
cemetery trust as reimbursement for
10 expenses incurred are to be paid from the
funds of that trust.
6 Validity of decisions of cemetery trusts
(1) An act or decision of a Class A cemetery
trust is not invalid merely because of--
15 (a) a defect or irregularity in, or in
connection with, the appointment of a
member; or
(b) a vacancy in the membership of the
trust, including a vacancy arising from
20 the failure to appoint an original
member.
(2) Anything done by or in relation to a person
purporting to act as chairperson or as a
member is not invalid merely because--
25 (a) the occasion for the appointment had
not arisen; or
(b) there was a defect or irregularity in
relation to the appointment; or
(c) the appointment had ceased to have
30 effect.
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7 Presiding at meetings of Class A cemetery
trusts
The person who is to preside at a meeting of
a cemetery trust is--
5 (a) the chairperson, if he or she is present;
or
(b) if the chairperson is absent, a member
elected to preside by the members of
the Class A cemetery trust present at
10 the meeting.
8 Proceedings of Class A cemetery trusts
(1) Subject to subclause (2), meetings of a Class
A cemetery trust are to be held at the times
and places that the chairperson determines.
15 (2) The chairperson of a Class A cemetery trust
may at any time convene a meeting, but must
do so when requested by at least 2 members
of the cemetery trust.
(3) A Class A cemetery trust may permit its
20 members to participate in a particular
meeting by--
(a) telephone; or
(b) closed-circuit television; or
(c) any other means of communication.
25 (4) A member who participates in a meeting
under a permission under subclause (3) is
deemed to be present at the meeting.
(5) A majority of the members for the time
being constitutes a quorum of a Class A
30 cemetery trust.
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(6) A question arising at a meeting--
(a) must be determined by a majority of
votes of members present and voting on
that question; and
5 (b) if the voting is equal, the person
presiding has a casting vote as well as a
deliberative vote.
(7) The person presiding must ensure that
minutes are kept of each of its meetings.
10 (8) Subject to this clause, a Class A cemetery
trust may regulate its own proceedings.
9 Disclosure of interest of Class A cemetery
trust members
(1) A member of a Class A cemetery trust who
15 has a direct or indirect pecuniary interest in a
contract or other matter being dealt with by
the trust must disclose the nature of that
interest at a meeting of the trust as soon as
possible after becoming aware of the interest.
20 (2) A member of a Class A cemetery trust who
holds an office or possesses property as a
result of which, directly or indirectly, duties
or interests may be created in conflict with
the member's duties as a member, must
25 disclose that fact at a meeting of the trust as
soon as possible after becoming aware of the
potential conflict.
(3) The person presiding at a meeting at which a
disclosure under this clause is made must
30 cause that disclosure to be recorded in the
minutes of the meeting.
(4) A person who has made a disclosure under
this clause must not take any further part in
the discussion of or vote on the contract or
35 other matter to which the disclosure relates.
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(5) If a member votes on a matter in
contravention of subclause (4), his or her
vote must be disallowed.
__________________".
5 24 New Schedule 3 inserted
After Schedule 2 to the Cemeteries and
Crematoria Act 2003 insert--
"__________________
SCHEDULE 3
10 Section 5A
REGIONAL CLASS A CEMETERY TRUSTS
1 Application of Schedule
This Schedule applies to--
(a) The Ballarat General Cemeteries Trust;
15 (b) The Bendigo Cemeteries Trust;
(c) The Geelong Cemeteries Trust.
2 Conversion to Class A cemetery trusts
(1) On the commencement of this Schedule, a
cemetery trust to which this Schedule
20 applies--
(a) is deemed, on and from that
commencement, to be a Class A
cemetery trust for the purposes of this
Act--
25 (i) responsible for the management of
the same public cemeteries for
which the relevant cemetery trust
was responsible immediately
before that commencement; and
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Part 2--Cemetery Trusts
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(ii) known by the same name as it was
known immediately before that
commencement;
(b) continues in existence as if established
5 as a Class A cemetery trust under
Part 2;
(c) is the same body after that
commencement as it was before the
commencement, despite the change of
10 its status to a Class A cemetery trust or
any change in membership of the
cemetery trust.
(2) Subclause (1) does not affect any decision,
matter or thing done or undertaken in
15 accordance with this Act by a cemetery trust
to which this Schedule applies immediately
before the commencement of this Schedule.
3 Trust members
(1) On the commencement of this Schedule, a
20 member of a cemetery trust to which this
Schedule applies in office immediately
before that commencement--
(a) is deemed to be a member of the
relevant cemetery trust converted by
25 clause 2 for the same cemetery trust of
which that person was a member
immediately before that
commencement as if appointed in
accordance with section 6A; and
30 Example
A member of the Ballarat General Cemeteries
Trust is a member of the Ballarat General
Cemeteries Trust which has been converted to a
Class A cemetery trust.
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A member of the Bendigo Cemeteries Trust is a
member of the Bendigo Cemeteries Trust which
has been converted to a Class A cemetery trust.
A member of the Geelong Cemeteries Trust is a
5 member of the Geelong Cemeteries Trust which
has been converted to a Class A cemetery trust.
(b) continues in office for a period of
3 years from the commencement of this
Schedule as if appointed in accordance
10 with section 6A; and
(c) if any member of a cemetery trust to
which this Schedule applies was,
immediately before that
commencement, a life member of a
15 cemetery trust, ceases to be a life
member and paragraph (b) applies to
that person; and
(d) in the case of a chairperson of a
cemetery trust to which this Schedule
20 applies, that person continues as
chairperson of the relevant cemetery
trust converted by clause 2 as if he or
she had been appointed under clause 2
of Schedule 1A for the remainder of the
25 period for which he or she was elected
chairperson of the cemetery trust as
constituted immediately before the
commencement of this Schedule,
provided that period does not exceed
30 3 years from the commencement of this
Schedule.
(2) The Minister, by instrument, may fix the
remuneration payable to any member of a
cemetery trust referred to in subclause (1) for
35 the period of the person's appointment under
subclause (1).
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(3) In fixing remuneration under subclause (2),
the Minister must take into account any
Government guidelines for the remuneration
of members of public bodies.
5 (4) Nothing in this clause prevents a person
being eligible for reappointment as a
member of a Class A cemetery trust or a
Class B cemetery trust.
4 Property and staff
10 (1) For the avoidance of doubt, on and from the
commencement of this Schedule--
(a) all property vested in a cemetery trust
to which this Schedule applies
immediately before that
15 commencement (including all money
standing immediately before that
commencement to the credit of a fund
or account of a cemetery trust to which
this Schedule applies and any other
20 money belonging to the cemetery trust
as at that commencement) and all rights
and liabilities--
(i) continue as the property, rights
and liabilities of the relevant
25 Class A cemetery trust converted
by this Schedule; and
(ii) may be used or invested by the
Class A cemetery trust converted
by this Schedule in accordance
30 with this Act; and
(b) a person employed immediately before
the commencement of this Schedule by
a cemetery trust to which this Schedule
applies (including a chief executive
35 officer of a cemetery trust to which this
Schedule applies) continues to be
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employed by the relevant Class A
cemetery trust converted by clause 2
subject to the same terms and
conditions of employment.
5 (2) Nothing in subclause (1)(b) prevents--
(a) any of the terms and conditions of
employment of a person referred to in
subclause (1)(b) from being altered by
or under any law, award or agreement
10 with effect from any time after the
commencement of this Schedule; or
(b) a person referred to in subclause (1)(b)
from resigning or being dismissed at
any time after the commencement of
15 this Schedule in accordance with the
then existing terms and conditions of
his or her employment by the relevant
Class A cemetery trust.
5 Amendment of Register
20 The Registrar of Titles, on being requested to
do so and on delivery of any relevant
certificate of title or instrument, must make
any amendments in the Register that are
necessary because of the operation of this
25 Schedule.
6 Validity of things done under this
Schedule
Nothing effected or to be effected by this
Schedule or done or suffered under this
30 Schedule--
(a) is to be regarded as placing any person
in breach of contract or confidence or
as otherwise making any person guilty
of a civil wrong; or
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Part 2--Cemetery Trusts
s. 24
(b) is to be regarded as placing any person
in breach of, or as constituting a default
under, any Act or other law or
obligation or any provision in any
5 agreement, arrangement or
understanding including, but not
limited to, any provision or obligation
prohibiting, restricting or regulating the
assignment, transfer, sale or disposal of
10 any property or the disclosure of any
information; or
(c) is to be regarded as fulfilling any
condition that allows a person to
exercise a power, right or remedy in
15 respect of or to terminate any
agreement or obligation; or
(d) is to be regarded as giving rise to any
remedy for a party to a contract or an
instrument or as causing or permitting
20 the termination of any contract or
instrument because of a change in the
beneficial or legal ownership of any
asset, right or liability; or
(e) is to be regarded as causing any
25 contract or instrument to be void or
otherwise unenforceable; or
(f) is to be regarded as frustrating any
contract; or
(g) releases any surety or other obligee or
30 obligor wholly or in part from any
obligation.".
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s. 25
25 New Schedule 4 inserted
At the end of the Cemeteries and Crematoria
Act 2003 insert--
"__________________
5 "SCHEDULE 4
Section 5B
ABOLITION OF CERTAIN CEMETERY
TRUSTS AND ESTABLISHMENT OF NEW
CLASS A CEMETERY TRUSTS
10 PART 1--PRELIMINARY
1 Definitions
In this Schedule--
appointed day means--
(a) in relation to The Mildura
15 Cemetery Trust, the appointed day
specified in an order made under
clause 2 in respect of The Mildura
Cemetery Trust;
(b) in relation to The Greater
20 Metropolitan Cemeteries Trust,
the appointed day specified in an
order made under clause 2 in
respect of The Greater
Metropolitan Cemeteries Trust;
25 (c) in relation to The Southern
Metropolitan Cemeteries Trust,
the appointed day specified in an
order made under clause 2 in
respect of The Southern
30 Metropolitan Cemeteries Trust;
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s. 25
former council managed cemetery trust
means--
(a) the old Mildura Cemetery Trust;
(b) The Keilor Cemetery Trust;
5 (c) The Preston Cemetery Trust;
(d) Wyndham Cemeteries Trust;
former instrument means an instrument
(including a legislative instrument other
than this Act) subsisting immediately
10 before the relevant appointed day--
(a) to which the old Mildura
Cemetery Trust, a former southern
cemetery trust or a former north
west and eastern cemetery trust
15 (as the case requires) was a party;
or
(b) that was given to, or in favour of,
the old Mildura Cemetery Trust, a
former southern cemetery trust or
20 a former north west and eastern
cemetery trust (as the case
requires); or
(c) that refers to the old Mildura
Cemetery Trust, a former southern
25 cemetery trust or a former north
west and eastern cemetery trust
(as the case requires); or
(d) under which--
(i) money is, or may become,
30 payable to the old Mildura
Cemetery Trust, a former
southern cemetery trust or a
former north west and
eastern cemetery trust (as the
35 case requires); or
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(ii) other property is to be, or
may become liable to be,
transferred to or by the old
Mildura Cemetery Trust, a
5 former southern cemetery
trust or a former north west
and eastern cemetery trust
(as the case requires);
former north west and eastern cemetery
10 trust means--
(a) The Anderson's Creek Cemetery
Trust;
(b) The Keilor Cemetery Trust;
(c) The Lilydale Cemeteries Trust;
15 (d) The Preston Cemetery Trust;
(e) The Templestowe Cemetery
Trust;
(f) The Trustees of the Altona
Memorial Park;
20 (g) The Trustees of the Fawkner
Crematorium and Memorial Park;
(h) Wyndham Cemeteries Trust;
former southern cemetery trust means--
(a) The Cheltenham and Regional
25 Cemeteries Trust;
(b) The Trustees of the Necropolis,
Spring Vale;
liabilities means all liabilities, duties and
obligations, whether actual, contingent
30 or prospective;
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listed employee means an employee of the
Brimbank City Council, the Darebin
City Council, the Mildura Rural City
Council or the Wyndham City Council
5 who is eligible for inclusion on a list
prepared under clause 15;
property means a legal or equitable estate or
interest (whether present or future and
whether vested or contingent) in real or
10 personal property of any description;
rights means all rights, powers, privileges
and immunities, whether actual,
contingent or prospective;
staff transfer date means a date fixed by the
15 Secretary under clause 16;
The Greater Metropolitan Cemeteries Trust
means the Class A cemetery trust
established by clause 4;
The Keilor Cemetery Trust means the Keilor
20 Cemetery Trust of which the Brimbank
City Council or its councillors are the
members;
The Mildura Cemetery Trust means the
Class A cemetery trust established by
25 clause 3;
the old Mildura Cemetery Trust means the
Mildura Cemetery Trust of which the
Mildura Rural City Council or its
councillors are the members;
30 The Preston Cemetery Trust means the
Preston Cemetery Trust of which the
Darebin City Council or its councillors
are the members;
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The Southern Metropolitan Cemeteries
Trust means the Class A cemetery trust
established by clause 5;
transfer order means an order made under
5 clause 10;
Wyndham Cemeteries Trust means the
Wyndham Cemeteries Trust of which
the Wyndham City Council or its
councillors are the members.
10 2 Appointed days
(1) The Governor in Council, by order published
in the Government Gazette, may appoint a
day as the appointed day in relation to The
Mildura Cemetery Trust for the purposes of
15 this Schedule.
(2) The Governor in Council, by order published
in the Government Gazette, may appoint a
day as the appointed day in relation to The
Greater Metropolitan Cemeteries Trust for
20 the purposes of this Schedule.
(3) The Governor in Council, by order published
in the Government Gazette, may appoint a
day as the appointed day in relation to The
Southern Metropolitan Cemeteries Trust for
25 the purposes of this Schedule.
PART 2--ESTABLISHMENT OF CLASS A
CEMETERY TRUSTS
3 The Mildura Cemetery Trust
(1) On the appointed day--
30 (a) the old Mildura Cemetery Trust is
abolished and its members go out of
office; and
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(b) The Mildura Cemetery Trust is
established and is the successor in law
of the old Mildura Cemetery Trust; and
(c) all property and rights of the old
5 Mildura Cemetery Trust are, by virtue
of this clause, vested in The Mildura
Cemetery Trust; and
(d) all liabilities of the old Mildura
Cemetery Trust are, by virtue of this
10 clause, liabilities of The Mildura
Cemetery Trust.
(2) The Mildura Cemetery Trust--
(a) is a Class A cemetery trust responsible
for the management of the public
15 cemeteries for which the old Mildura
Cemetery Trust was responsible
immediately before the appointed day;
and
(b) is taken to have been established as a
20 Class A cemetery trust under Part 2.
4 The Greater Metropolitan Cemeteries
Trust
(1) On the appointed day--
(a) the following cemetery trusts are
25 abolished and the members go out of
office--
(i) The Anderson's Creek Cemetery
Trust;
(ii) The Keilor Cemetery Trust;
30 (iii) The Lilydale Cemeteries Trust;
(iv) The Preston Cemetery Trust;
(v) The Templestowe Cemetery
Trust;
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(vi) The Trustees of the Altona
Memorial Park;
(vii) The Trustees of the Fawkner
Crematorium and Memorial Park;
5 (viii) Wyndham Cemeteries Trust;
(b) The Greater Metropolitan Cemeteries
Trust is established and is the successor
in law to each of the cemetery trusts
specified in paragraph (a); and
10 (c) all property and rights of each of the
former north west and eastern cemetery
trusts are, by virtue of this clause,
vested in The Greater Metropolitan
Cemeteries Trust; and
15 (d) all liabilities of each of the former north
west and eastern cemetery trusts are, by
virtue of this clause, liabilities of The
Greater Metropolitan Cemeteries Trust.
(2) The Greater Metropolitan Cemeteries
20 Trust--
(a) is a Class A cemetery trust responsible
for the management of the public
cemeteries for which each of the former
north west and eastern cemetery trusts
25 was responsible immediately before the
appointed day; and
(b) is taken to have been established as a
Class A cemetery trust under Part 2.
5 The Southern Metropolitan Cemeteries
30 Trust
(1) On the appointed day--
(a) The Cheltenham and Regional
Cemeteries Trust is abolished and the
members go out of office; and
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(b) The Trustees of the Necropolis, Spring
Vale is abolished and the members go
out of office; and
(c) The Southern Metropolitan Cemeteries
5 Trust is established and is the successor
in law to each of the cemetery trusts
specified in paragraphs (a) and (b); and
(d) all property and rights of each of the
former southern cemetery trusts are, by
10 virtue of this clause, vested in The
Southern Metropolitan Cemeteries
Trust; and
(e) all liabilities of each of the former
southern cemetery trusts are, by virtue
15 of this clause, liabilities of The
Southern Metropolitan Cemeteries
Trust.
(2) The Southern Metropolitan Cemeteries
Trust--
20 (a) is a Class A cemetery trust responsible
for the management of the public
cemeteries for which each of the former
southern cemetery trusts was
responsible immediately before the
25 appointed day; and
(b) is taken to have been established as a
Class A cemetery trust under Part 2.
6 Substitution of party to agreement
(1) If, under clause 3, the rights and liabilities of
30 the old Mildura Cemetery Trust under an
agreement, including an oral agreement, vest
in, or become rights and liabilities of, The
Mildura Cemetery Trust--
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(a) on the appointed day, The Mildura
Cemetery Trust becomes a party to the
agreement in place of the old Mildura
Cemetery Trust; and
5 (b) on and after the appointed day, the
agreement has effect as if The Mildura
Cemetery Trust had always been a
party to the agreement.
(2) If, under clause 4, the rights and liabilities of
10 a former north west and eastern cemetery
trust under an agreement, including an oral
agreement, vest in, or become rights and
liabilities of, The Greater Metropolitan
Cemeteries Trust--
15 (a) on the appointed day, The Greater
Metropolitan Cemeteries Trust
becomes a party to the agreement in
place of the relevant former north west
and eastern cemeteries trust; and
20 (b) on and after the appointed day, the
agreement has effect as if The Greater
Metropolitan Cemeteries Trust had
always been a party to the agreement.
(3) If, under clause 5, the rights and liabilities of
25 a former southern cemetery trust under an
agreement, including an oral agreement, vest
in, or become rights and liabilities of, The
Southern Metropolitan Cemeteries Trust--
(a) on the appointed day, The Southern
30 Metropolitan Cemeteries Trust
becomes a party to the agreement in
place of the relevant former southern
cemetery trust; and
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(b) on and after the appointed day, the
agreement has effect as if The Southern
Metropolitan Cemeteries Trust had
always been a party to the agreement.
5 7 Former instruments
Any former instrument continues to have
effect according to its tenor on and after the
relevant appointed day as if a reference in
the instrument--
10 (a) to the old Mildura Cemetery Trust were
a reference to The Mildura Cemetery
Trust;
(b) to a former north west and eastern
cemetery trust were a reference to The
15 Greater Metropolitan Cemeteries Trust;
(c) to a former southern cemetery trust
were a reference to The Southern
Metropolitan Cemeteries Trust.
8 Proceedings
20 (1) If, immediately before the appointed day,
proceedings to which the old Mildura
Cemetery Trust was a party were pending or
existing in any court or tribunal, on and after
the appointed day, The Mildura Cemetery
25 Trust--
(a) is substituted for the old Mildura
Cemetery Trust as a party to the
proceedings; and
(b) has the same rights in the proceedings
30 as the old Mildura Cemetery Trust had.
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(2) If, immediately before the appointed day,
proceedings to which a former north west
and eastern cemetery trust was a party were
pending or existing in any court or tribunal,
5 on and after the appointed day, The Greater
Metropolitan Cemeteries Trust--
(a) is substituted for the relevant former
north west and eastern cemetery trust as
a party to the proceedings; and
10 (b) has the same rights in the proceedings
as the relevant former north west and
eastern cemetery trust had.
(3) If, immediately before the appointed day,
proceedings to which a former southern
15 cemetery trust was a party were pending or
existing in any court or tribunal, on and after
the appointed day, The Southern
Metropolitan Cemeteries Trust--
(a) is substituted for the relevant former
20 southern cemetery trust as a party to the
proceedings; and
(b) has the same rights in the proceedings
as the relevant former southern
cemetery trust had.
25 9 Interests in land
Without limiting Division 2 of Part 3 or this
Schedule and despite anything to the
contrary in any other Act or law (other than
the Charter of Human Rights and
30 Responsibilities Act 2006), subject to
clause 10, if--
(a) immediately before the appointed day
the old Mildura Cemetery Trust is the
registered proprietor of an interest in
35 land under the Transfer of Land Act
1958, on and after that day--
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(i) The Mildura Cemetery Trust is to
be taken to be the registered
proprietor of that interest in land;
and
5 (ii) The Mildura Cemetery Trust has
the same rights and remedies in
respect of that interest as the old
Mildura Cemetery Trust had;
(b) immediately before the appointed day a
10 former north west and eastern cemetery
trust is the registered proprietor of an
interest in land under the Transfer of
Land Act 1958, on and after that day--
(i) The Greater Metropolitan
15 Cemeteries Trust is to be taken to
be the registered proprietor of that
interest in land; and
(ii) The Greater Metropolitan
Cemeteries Trust has the same
20 rights and remedies in respect of
that interest as the relevant former
north west and eastern cemetery
trust had;
(c) immediately before the appointed day,
25 a former southern cemetery trust is the
registered proprietor of an interest in
land under the Transfer of Land Act
1958, on and after that day--
(i) The Southern Metropolitan
30 Cemeteries Trust is to be taken to
be the registered proprietor of that
interest in land; and
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(ii) The Southern Metropolitan
Cemeteries Trust has the same
rights and remedies in respect of
that interest as the relevant former
5 southern cemetery trust had.
10 Transfer order--former council managed
cemetery trusts
(1) On the recommendation of the Minister, the
Governor in Council, by order published in
10 the Government Gazette, may allocate to a
Class A cemetery trust established by this
Schedule the property, rights and liabilities
of a municipal council which constituted a
former council managed cemetery trust
15 primarily used for or related to a former
council managed cemetery trust or used for
or in connection with the provision of
cemetery or crematoria services or the
management of a public cemetery by the
20 municipal council that are specified in the
order.
(2) Without limiting subclause (1), a transfer
order may allocate property, rights and
liabilities by reference--
25 (a) to a public cemetery or other place; or
(b) to a class or category of property, rights
or liabilities; or
(c) to a combination of paragraphs (a) and
(b).
30 (3) The Minister must not recommend the
making of a transfer order unless he or she is
satisfied that the details of the property,
rights or liabilities to be transferred have
been agreed between a municipal council
35 which constituted a former council managed
cemetery trust and the Secretary or a new
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Class A cemetery trust established by this
Schedule.
11 Effect of transfer order
(1) If a transfer order is made, on the date
5 specified in the order as the transfer date--
(a) all property and rights of the municipal
council specified in the order vest in the
Class A cemetery trust established by
this Schedule and specified in the
10 transfer order; and
(b) all liabilities of the municipal council
specified in the order become liabilities
of the Class A cemetery trust
established by this Schedule and
15 specified in the transfer order; and
(c) the Class A cemetery trust established
by this Schedule and specified in the
order becomes the successor in law of
the municipal council in relation to the
20 property, rights and liabilities specified
in the transfer order.
(2) If, under a transfer order, the property, rights
and liabilities of a municipal council under
an agreement, including an oral agreement,
25 vest in, or become property, rights and
liabilities of, a Class A cemetery trust
established by this Schedule--
(a) the Class A cemetery trust becomes, on
the transfer date specified in the
30 transfer order, a party to the agreement
in place of the municipal council; and
(b) on and after the transfer date specified
in the transfer order, the agreement has
effect as if the Class A cemetery trust
35 had always been a party to the
agreement.
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(3) If, immediately before the transfer date
specified in the transfer order, proceedings
relating to the property, rights or liabilities
specified in the transfer order to which a
5 municipal council was a party, were pending
or existing in any court or tribunal, on and
after the transfer date specified in the transfer
order, the Class A cemetery trust established
by this Schedule and specified in the order--
10 (a) is substituted for the municipal council
as a party to the proceedings; and
(b) has the same rights in the proceedings
as the municipal council had.
(4) Without limiting this Schedule and despite
15 anything to the contrary in any other Act or
law (other than the Charter of Human
Rights and Responsibilities Act 2006), if
immediately before the transfer date
specified in the transfer order, a municipal
20 council is, in relation to the property, rights
or liabilities specified in the transfer order,
the registered proprietor of an interest in land
under the Transfer of Land Act 1958, then
on and after that date--
25 (a) the Class A cemetery trust established
by this Schedule and specified in the
order is to be taken to be the registered
proprietor of that interest in land; and
(b) the Class A cemetery trust established
30 by this Schedule and specified in the
order has the same rights and remedies
in respect of that interest as the
municipal council had.
(5) Any instrument relating to property, rights
35 and liabilities of a municipal council that
under a transfer order have vested in, or
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become property, rights and liabilities of a
Class A cemetery trust established by this
Schedule has effect and continues to have
effect according to its tenor on and after the
5 transfer date specified in the transfer order as
if a reference in the instrument to the
municipal council were a reference to the
Class A cemetery trust specified in the
transfer order.
10 (6) More than one transfer order may be made
under this clause.
12 Interim CEO
(1) The Secretary, by instrument, may appoint a
person to act as the interim chief executive
15 officer of The Mildura Cemetery Trust.
(2) The Secretary, by instrument, may appoint a
person to act as the interim chief executive
officer of The Greater Metropolitan
Cemeteries Trust.
20 (3) The Secretary, by instrument, may appoint a
person to act as the interim chief executive
officer of The Southern Metropolitan
Cemeteries Trust.
(4) Subject to this Act, a person appointed to act
25 as interim chief executive officer--
(a) of The Mildura Cemetery Trust
appointed under subclause (1) is taken
to have been appointed by The Mildura
Cemetery Trust;
30 (b) of The Greater Metropolitan
Cemeteries Trust appointed under
subclause (2) is taken to have been
appointed by The Greater Metropolitan
Cemeteries Trust;
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(c) of The Southern Metropolitan
Cemeteries Trust appointed under
subclause (3) is taken to have been
appointed by The Southern
5 Metropolitan Cemeteries Trust.
(5) An appointment under subclause (1), (2)
or (3)--
(a) is subject to the terms and conditions
specified in the instrument of
10 appointment; and
(b) is for the period specified in that
instrument, not exceeding 6 months.
Note
See section 13 of the Interpretation of
15 Legislation Act 1984.
(6) The Secretary may reappoint an interim chief
executive officer appointed under this clause
provided the total period of the interim chief
executive officer's appointment does not
20 exceed 12 months.
(7) Nothing in this clause prevents a person
appointed as an interim chief executive
officer being employed by the relevant
Class A cemetery trust in accordance with
25 section 18L as a chief executive officer after
his or her interim appointment expires.
13 Transfer of staff
(1) A person who, immediately before the
appointed day, was an employee of the old
30 Mildura Cemetery Trust is to be taken as--
(a) having been employed by The Mildura
Cemetery Trust with effect from that
day; and
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(b) having been employed by The Mildura
Cemetery Trust on the same terms and
conditions as those that applied to the
person immediately before that day as
5 an employee of the old Mildura
Cemetery Trust; and
(c) having accrued an entitlement to
benefits in connection with that
employment by The Mildura Cemetery
10 Trust that is equivalent to the
entitlement that the person had accrued
as an employee of the old Mildura
Cemetery Trust immediately before that
day.
15 (2) A person who, immediately before the
appointed day, was an employee of a former
north west and eastern cemetery trust is to be
taken as--
(a) having been employed by The Greater
20 Metropolitan Cemeteries Trust with
effect from that day; and
(b) having been employed by The Greater
Metropolitan Cemeteries Trust on the
same terms and conditions as those that
25 applied to the person immediately
before that day as an employee of the
relevant former north west and eastern
cemetery trust; and
(c) having accrued an entitlement to
30 benefits in connection with that
employment by The Greater
Metropolitan Cemeteries Trust that is
equivalent to the entitlement that the
person had accrued as an employee of
35 the relevant former north west and
eastern cemetery trust immediately
before that day.
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(3) A person who, immediately before the
appointed day, was an employee of a former
southern cemetery trust is to be taken as--
(a) having been employed by The Southern
5 Metropolitan Cemeteries Trust with
effect from that day; and
(b) having been employed by The Southern
Metropolitan Cemeteries Trust on the
same terms and conditions as those that
10 applied to the person immediately
before that day as an employee of the
relevant former southern cemetery
trust; and
(c) having accrued an entitlement to
15 benefits in connection with that
employment by The Southern
Metropolitan Cemeteries Trust that is
equivalent to the entitlement that the
person had accrued as an employee of
20 the relevant former southern cemetery
trust immediately before that day.
(4) The service of an employee transferred under
this clause as an employee--
(a) of The Mildura Cemetery Trust is to be
25 taken for all purposes as having been
continuous with the service of the
employee, immediately before the
appointed day, as an employee of the
old Mildura Cemetery Trust;
30 (b) of The Greater Metropolitan
Cemeteries Trust is to be taken for all
purposes as having been continuous
with the service of the employee,
immediately before the appointed day,
35 as an employee of the relevant former
north west and eastern cemetery trust;
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(c) of The Southern Metropolitan
Cemeteries Trust is to be taken for all
purposes as having been continuous
with the service of the employee,
5 immediately before the appointed day,
as an employee of the relevant former
southern cemetery trust.
(5) The superannuation entitlements of an
employee transferred under this clause are to
10 be taken not to be affected by the transfer of
the person under this clause.
(6) An employee transferred under this clause is
not entitled to receive any payment or other
benefit by reason only of having ceased to be
15 an employee of the old Mildura Cemetery
Trust, the relevant former southern cemetery
trust or the relevant former north west and
eastern cemetery trust, as the case requires,
because of this clause.
20 (7) A certificate purporting to be signed by the
chief executive officer of The Mildura
Cemetery Trust, The Greater Metropolitan
Cemeteries Trust or The Southern
Metropolitan Cemeteries Trust, as the case
25 requires, certifying that a person named in
the certificate was, with effect from the
relevant appointed day, employed by virtue
of this clause by The Mildura Cemetery
Trust, The Greater Metropolitan Cemeteries
30 Trust or The Southern Metropolitan
Cemeteries Trust (as the case requires)--
(a) is admissible in evidence in any
proceedings; and
(b) is conclusive proof of the matters stated
35 in it.
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(8) This clause does not apply to the chief
executive officer (by whatever title called)
of--
(a) the old Mildura Cemetery Trust;
5 (b) a former north west and eastern
cemetery trust;
(c) a former southern cemetery trust.
(9) This clause does not apply to a listed
employee.
10 14 Future terms and conditions of staff
Nothing in clause 13 prevents--
(a) any of the terms and conditions of
employment of a person referred to in
that clause from being altered by or
15 under any law, award or agreement
with effect from any time after the
relevant appointed day; or
(b) a person referred to in that clause from
resigning or being dismissed at any
20 time after the relevant appointed day in
accordance with the then existing terms
and conditions of his or her
employment by The Mildura Cemetery
Trust, The Greater Metropolitan
25 Cemeteries Trust or The Southern
Metropolitan Cemeteries Trust, as the
case requires.
15 Listed employees
(1) Before the relevant staff transfer date, the
30 Secretary may prepare a list of employees of
Brimbank City Council, Darebin City
Council, Mildura Rural City Council or
Wyndham City Council who are eligible to
become employees of a new Class A
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cemetery trust established by this Schedule
on that date.
(2) A person is eligible to be a listed employee if
that person--
5 (a) is employed by a municipal council
referred to in subclause (1) primarily
for the purposes of a cemetery trust or
any public cemetery for which it is
responsible; and
10 (b) agrees to be transferred in accordance
with this Schedule.
(3) The list may specify the listed employees--
(a) by name or position; or
(b) by class or category; or
15 (c) by reference to a municipal council, a
cemetery trust, public cemetery or other
place; or
(d) by any combination of paragraphs (a)
to (c).
20 (4) The list must specify the new Class A
cemetery trust established by this Schedule
which, on the staff transfer date, is to
become the employer of each listed
employee specified on the list.
25 (5) Nothing in this clause prevents a person
specified as a listed employee under this
clause from resigning or being dismissed at
any time before the relevant staff transfer
date in accordance with the terms and
30 conditions of his or her employment.
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16 Staff transfer date
(1) The Secretary, by notice published in the
Government Gazette, may determine a date
that is to be the staff transfer date for the
5 purposes of transferring a listed employee or
listed employees.
(2) A staff transfer date must not be a date
earlier than the appointed day in relation to
the relevant Class A cemetery trust
10 established by this Schedule.
(3) The Secretary may give more than one notice
under this clause.
17 Transfer of listed employees
(1) A person who was a listed employee
15 immediately before the relevant staff transfer
date is to be taken as--
(a) having been employed by the Class A
cemetery trust established by this
Schedule and specified in the list in
20 respect of that listed employee with
effect from the staff transfer date; and
(b) having been so employed on the same
terms and conditions as those that
applied to the person, immediately
25 before the relevant staff transfer date,
as an employee of the relevant
municipal council; and
(c) having accrued an entitlement to
benefits in connection with that
30 employment with the Class A cemetery
trust established by this Schedule and
specified in the list in respect of that
listed employee that is equivalent to the
entitlement that the person had accrued
35 as an employee of the relevant
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municipal council immediately before
the relevant staff transfer date.
(2) The service of a listed employee transferred
under this clause as an employee of the
5 Class A cemetery trust established by this
Schedule and specified in the list in respect
of that listed employee is to be regarded for
all purposes as having been continuous with
the service of the transferred listed
10 employee, immediately before the relevant
staff transfer date, as an employee of the
relevant municipal council.
(3) A listed employee transferred under this
clause is not entitled to receive any payment
15 or other benefit by reason only of having
ceased to be an employee of a municipal
council because of this Schedule.
(4) The superannuation entitlements of an
employee transferred under this clause are to
20 be taken not to be affected by the transfer of
the person under this clause.
(5) A certificate purporting to be signed by the
chief executive officer of the Class A
cemetery trust established by this Schedule
25 and specified in the list in respect of a listed
employee certifying that a person named in
the certificate was, with effect from the
relevant staff transfer date, employed by
virtue of this clause by the Class A cemetery
30 trust named in the certificate--
(a) is admissible in evidence in any
proceedings; and
(b) is conclusive proof of the matters stated
in it.
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18 Future terms and conditions of
transferred listed employees
Nothing in clause 17 prevents--
(a) any of the terms and conditions of
5 employment of a listed employee
transferred under that clause from being
altered by or under any law, award or
agreement with effect from any time
after the relevant staff transfer date; or
10 (b) a listed employee transferred under that
clause from resigning, or the
termination of that employee's
employment, at any time after the
relevant staff transfer date in
15 accordance with the then existing terms
and conditions of his or her
employment by the Class A cemetery
trust to which that listed employee was
transferred.
20 19 Cemetery trust fees
(1) Any cemetery trust fees fixed by the old
Mildura Cemetery Trust, a former north west
and eastern cemetery trust or a former
southern cemetery trust and in force
25 immediately before the relevant appointed
day, on and from the relevant appointed day,
are taken to be cemetery trust fees fixed
by--
(a) The Mildura Cemetery Trust, in the
30 case of cemetery trust fees fixed by the
old Mildura Cemetery Trust;
(b) The Greater Metropolitan Cemeteries
Trust, in the case of cemetery trust fees
fixed by a former north west and
35 eastern cemetery trust;
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(c) The Southern Metropolitan Cemeteries
Trust, in the case of cemetery trust fees
fixed by a former southern cemetery
trust.
5 (2) Cemetery trust fees to which this clause
applies must be reviewed by the relevant
Class A cemetery trust established by this
Schedule within 2 years of the relevant
appointed day for each Class A cemetery
10 trust.
20 Construction of references
On and from the relevant appointed day, in
any Act (other than this Act), or in any
subordinate instrument made under any Act
15 or in any other document of any kind, unless
the context otherwise requires--
(a) a reference to The Cheltenham and
Regional Cemeteries Trust is to be
construed as a reference to The
20 Southern Metropolitan Cemeteries
Trust;
(b) a reference to The Trustees of the
Necropolis, Spring Vale is to be
construed as a reference to The
25 Southern Metropolitan Cemeteries
Trust;
(c) a reference to The Anderson's Creek
Cemetery Trust is to be construed as a
reference to The Greater Metropolitan
30 Cemeteries Trust;
(d) a reference to The Keilor Cemetery
Trust is to be construed as a reference
to The Greater Metropolitan Cemeteries
Trust;
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(e) a reference to The Lilydale Cemeteries
Trust is to be construed as a reference
to The Greater Metropolitan Cemeteries
Trust;
5 (f) a reference to The Preston Cemetery
Trust is to be construed as a reference
to The Greater Metropolitan Cemeteries
Trust;
(g) a reference to The Templestowe
10 Cemetery Trust is to be construed as a
reference to The Greater Metropolitan
Cemeteries Trust;
(h) a reference to The Trustees of the
Altona Memorial Park is to be
15 construed as a reference to The Greater
Metropolitan Cemeteries Trust;
(i) a reference to The Trustees of the
Fawkner Crematorium and Memorial
Park is to be construed as a reference to
20 The Greater Metropolitan Cemeteries
Trust;
(j) a reference to Wyndham Cemeteries
Trust is to be construed as a reference
to The Greater Metropolitan Cemeteries
25 Trust;
(k) a reference to the Mildura Cemetery
Trust is to be construed as a reference
to The Mildura Cemetery Trust
established by this Schedule.
30 PART 3--GENERAL
21 Amendment of Register
The Registrar of Titles, on being requested to
do so and on delivery of any relevant
certificate of title or instrument, must make
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any amendments in the Register that are
necessary because of the operation of this
Schedule.
22 Taxes
5 No stamp duty or other tax is chargeable
under any Act in respect of anything effected
by or done under this Schedule or in respect
of any act or transaction connected with or
necessary to be done by reason of this
10 Schedule, including a transaction entered
into or an instrument made, executed, lodged
or given, for the purpose of, or connected
with the transfer of property, rights or
liabilities of a cemetery trust.
15 23 Validity of things done under this
Schedule
Nothing effected or to be effected by this
Schedule or done or suffered under this
Schedule--
20 (a) is to be regarded as placing any person
in breach of contract or confidence or
as otherwise making any person guilty
of a civil wrong; or
(b) is to be regarded as placing any person
25 in breach of, or as constituting a default
under, any Act or other law or
obligation or any provision in any
agreement, arrangement or
understanding including, but not
30 limited to, any provision or obligation
prohibiting, restricting or regulating the
assignment, transfer, sale or disposal of
any property or the disclosure of any
information; or
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(c) is to be regarded as fulfilling any
condition that allows a person to
exercise a power, right or remedy in
respect of or to terminate any
5 agreement or obligation; or
(d) is to be regarded as giving rise to any
remedy for a party to a contract or an
instrument or as causing or permitting
the termination of any contract or
10 instrument because of a change in the
beneficial or legal ownership of any
asset, right or liability; or
(e) is to be regarded as causing any
contract or instrument to be void or
15 otherwise unenforceable; or
(f) is to be regarded as frustrating any
contract; or
(g) releases any surety or other obligee or
obligor wholly or in part from any
20 obligation.".
__________________
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s. 26
PART 3--MISCELLANEOUS AMENDMENTS
26 Definitions
In section 3(1) of the Cemeteries and
Crematoria Act 2003--
5 (a) insert the following definition--
"fees and charges guidelines means
guidelines made under section 42A;";
(b) for the definition of cemetery trust fee
substitute--
10 "cemetery trust fee means a fee or charge or
scale of fees and charges set under
section 39 and either--
(a) approved under section 40; or
(b) exempt under section 40A from
15 approval under section 40;".
27 Establishment of public cemeteries
For section 4(4) of the Cemeteries and
Crematoria Act 2003 substitute--
"(4) The Governor in Council, by order published
20 in the Government Gazette, may--
(a) change the name of a public cemetery;
(b) include additional reserved Crown land
in a public cemetery;
(c) remove any land that has ceased to be
25 reserved for the purposes of a cemetery
from a public cemetery;
(d) amend or vary an order made under
subsection (1).".
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28 Power to fix fees and charges
(1) After section 39(2)(a) of the Cemeteries and
Crematoria Act 2003 insert--
"(ab) the fees and charges guidelines, if any; and".
5 (2) In section 39(4) of the Cemeteries and
Crematoria Act 2003 after "section 40" insert
", unless they are exempt under section 40A".
29 Secretary to approve fees and charges
In section 40(2) of the Cemeteries and
10 Crematoria Act 2003 after "in part" insert
", unless they are exempt under section 40A".
30 New section 40A inserted
After section 40 of the Cemeteries and
Crematoria Act 2003 insert--
15 "40A Secretary may exempt certain fees and
charges from approval
(1) The Secretary may exempt specified fees and
charges or scales of fees and charges from
being approved under section 40 if, in the
20 Secretary's opinion, there is no public benefit
in those fees and charges being approved.
(2) An exemption under subsection (1) may--
(a) specify individual fees and charges or
scales of fees and charges which do not
25 require approval under section 40;
(b) specify fees and charges or scales of
fees and charges by class;
(c) be of general or limited application;
(d) differ according to differences in time,
30 place or circumstance;
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(e) apply to all cemetery trusts, specified
cemetery trusts or specified classes of
cemetery trusts;
(f) apply to all public cemeteries, specified
5 public cemeteries or specified classes
of public cemetery.
(3) The Secretary--
(a) must cause an exemption under
subsection (1) to be published in the
10 Government Gazette; and
(b) may publish the exemption under
subsection (1) on the Internet.
(4) An exemption under subsection (1) takes
effect on the date of publication in the
15 Government Gazette or such later date as is
specified in the exemption.".
31 New section 42A inserted
After section 42 of the Cemeteries and
Crematoria Act 2003 insert--
20 "42A Fees and charges guidelines
(1) The Secretary may make guidelines for or
with respect to fees and charges fixed by
cemetery trusts for services.
(2) The guidelines may include, but are not
25 limited to, processes and methodologies to
be applied by a cemetery trust and matters it
must take into account.
(3) The Secretary--
(a) must cause the fees and charges
30 guidelines to be published in the
Government Gazette; and
(b) may publish the fees and charges
guidelines on the Internet.
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(4) The fees and charges guidelines take effect
on the date of publication in the Government
Gazette or such later date as is specified in
the guidelines.".
5 32 Fees and charges to increase by CPI
(1) In section 43 of the Cemeteries and Crematoria
Act 2003--
(a) for subsection (1)(b) substitute--
"(b) if the CPI for the December quarter of
10 the financial year in which the
declaration under subsection (2) is
made is more than the CPI for the
previous December quarter.";
(b) in subsection (2) for "June" substitute
15 "March".
(2) After section 43(1) of the Cemeteries and
Crematoria Act 2003 insert--
"(1A) This section does not apply to a cemetery
trust fee to which an exemption under
20 section 40A applies.".
(3) For sections 43(4) and 43(5) of the Cemeteries
and Crematoria Act 2003 substitute--
'(4) A cemetery trust fee to which this section
applies is increased by an amount calculated
25 in accordance with the following formula--
B
A ×
C
where--
"A" is the relevant cemetery trust fee as at
1 February in the financial year in
30 which the declaration under subsection
(2) is made; and
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"B" is the CPI for the December quarter in
the financial year in which the
declaration under subsection (2) is
made; and
5 "C" is the CPI for the previous December
quarter.
(5) A cemetery trust fee increased in accordance
with this section must be rounded to the
nearest 5 dollar unit.
10 Example
A CPI adjusted fee of $1923 is rounded to $1925.
A CPI adjusted fee of $1922 is rounded to $1920.'.
(4) In section 43(7) of the Cemeteries and
Crematoria Act 2003--
15 (a) for "Statistician;" substitute "Statistician.";
(b) the definition of relevant year is repealed.
33 Application of Division
Section 48(a) of the Cemeteries and Crematoria
Act 2003 is repealed.
20 34 Accounts and records
In section 49(2) of the Cemeteries and
Crematoria Act 2003 for "The" substitute
"In the case of a Class B cemetery trust that is not
a cemetery trust to which the Financial
25 Management Act 1994 applies, the".
35 Auditing
(1) In section 50 of the Cemeteries and Crematoria
Act 2003 for "a cemetery trust" (where twice
occurring) substitute "a Class B cemetery trust".
30 (2) After section 50(2) of the Cemeteries and
Crematoria Act 2003 insert--
"(3) A Class B cemetery trust must comply with a
direction given under this section.".
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36 Secretary may ask for investigation
In section 51 of the Cemeteries and Crematoria
Act 2003--
(a) for "ask" substitute "request";
5 (b) in paragraph (b) for "trust." substitute
"trust; or";
(c) after paragraph (b) insert--
"(c) to conduct a performance audit of a
cemetery trust--
10 (i) to determine whether the trust is
complying with the Act; or
(ii) to investigate any aspect of the
trust's governance, management or
operations.".
15 37 New sections 51A to 51E inserted
After section 51 of the Cemeteries and
Crematoria Act 2003 insert--
"51A Secretary to determine terms of reference
and other matters
20 (1) Before any audit or investigation is
conducted under section 51, the Secretary
must--
(a) determine the terms of reference of the
audit or investigation, including any
25 particular objectives or issues to be
addressed;
(b) determine the reporting requirements,
including when a final report of the
audit or investigation is to be given to
30 the Secretary;
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(c) specify in writing to a person requested
to conduct the audit or investigation
under section 51--
(i) the terms of reference for the audit
5 or investigation; and
(ii) the reporting requirements.
(2) The Secretary must notify a cemetery trust
which is to be audited or investigated under
section 51 of--
10 (a) the terms of reference for the audit or
investigation; and
(b) the name of the person requested to
conduct the audit or investigation.
51B Auditor's authority
15 (1) The Secretary must issue to a person
requested to conduct an audit or
investigation under section 51 written
evidence of that person's authority to conduct
that audit or investigation.
20 (2) A person requested by the Secretary to
conduct an audit or investigation under
section 51 must produce his or her
authorisation for inspection if asked to do so
during the exercise of a power under this
25 Division.
51C Powers of auditors
(1) A person conducting an audit or
investigation of a cemetery trust under
section 51 may, at any reasonable time, enter
30 any premises of the cemetery trust (other
than residential premises) for the purposes of
the audit or investigation and may--
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(a) inspect any records of the cemetery
trust;
(b) copy or make extracts of any relevant
records of the cemetery trust;
5 (c) ask questions of any person--
(i) employed or engaged by the
cemetery trust (whether in a paid
or honorary capacity); or
(ii) who is a member of the cemetery
10 trust.
(2) A person referred to in subsection (1)(c)
must cooperate with a person conducting an
audit or investigation of a cemetery trust
under section 51, to the extent that the person
15 is capable of doing so.
(3) Without limiting subsection (2), a person
conducting the audit or investigation who
enters any premises of a cemetery trust under
this section may direct a person referred to in
20 subsection (1)(c)(i) or (ii) to--
(a) produce a document or part of a
document that is in the person's
possession or control;
(b) operate equipment to access
25 information from that equipment;
(c) answer any questions put by the person
conducting the audit or investigation.
51D Report to Secretary
A person conducting an audit or
30 investigation under section 51 must report to
the Secretary in accordance with any
requirement under section 51A(1)(b).
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51E Confidentiality requirements
(1) Except to the extent necessary to perform
any official duties or to perform or exercise
any power or function under this Act or any
5 other Act, a person who is, or at any time has
been, a person conducting an audit or
investigation under section 51 must not,
either directly or indirectly--
(a) make a record of, or divulge or
10 communicate to any person, any
information that is, or was acquired by
the person by reason of being, or
having been, a person conducting an
audit or investigation under section 51;
15 or
(b) make use of any such information for
any purpose other than the performance
of official duties or the performance or
exercise of that function or power.
20 Penalty: 100 penalty units.
(2) Subsection (1) does not preclude a person
from--
(a) producing a document to a court in the
course of criminal proceedings; or
25 (b) divulging or communicating to a court
in the course of any criminal
proceedings any matter or thing coming
under the notice of the person in the
performance of official duties or in the
30 performance or exercise of a power
referred to in subsection (1); or
(c) producing a document or divulging or
communicating information that is
expressly authorised or permitted by
35 any Act to be produced, divulged or
communicated; or
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(d) producing a document or divulging or
communicating information with the
prior consent of--
(i) the person to whom it relates; or
5 (ii) if that person has died, with the
consent of the senior available
next of kin of that person.
(3) In this section, court includes any board,
tribunal or person authorised to receive
10 evidence.".
38 New section 52A inserted
After section 52 of the Cemeteries and
Crematoria Act 2003 insert--
"52A Class A cemetery trust--operational
15 report
A Class A cemetery trust must include in its
report of operations under Part 7 of the
Financial Management Act 1994
particulars relating to the operation of the
20 public cemetery and any crematorium in the
public cemetery for which the Class A
cemetery trust is responsible.".
39 New sections 64A and 64B inserted
In Division 1 of Part 5 of the Cemeteries and
25 Crematoria Act 2003, after section 64 insert--
"64A Order reopening closed cemetery
(1) On the recommendation of the Minister, the
Governor in Council, by order published in
the Government Gazette, may reopen a
30 closed cemetery or part of a closed cemetery.
(2) The Minister must not make a
recommendation under subsection (1) unless
he or she is satisfied that it is in the public
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interest to reopen the closed cemetery or part
of the closed cemetery.
(3) An order under subsection (1) may be made
in respect of--
5 (a) a public cemetery or part of a public
cemetery closed under section 62; or
(b) a cemetery, burial ground or place of
burial discontinued under section 44 of
the Cemeteries Act 1958, as in force
10 immediately before its repeal or under
any corresponding previous enactment.
(4) An order under subsection (1) may be
subject to any conditions that the Governor
in Council thinks fit.
15 (5) An order under subsection (1) must not be
made in respect of a historic cemetery park.
64B Effect of order reopening a closed
cemetery
On the making of an order under
20 section 64A--
(a) the closed cemetery or closed part of
the public cemetery to which the order
applies is reopened; and
(b) the cemetery trust responsible for
25 managing the closed cemetery or closed
part of the cemetery becomes the
cemetery trust responsible for
managing the reopened public cemetery
or reopened part of the cemetery; and
30 (c) the reopened public cemetery or
reopened part of the cemetery is a
public cemetery or part of a public
cemetery for the purposes of this Act;
and
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(d) subject to the order under section 64A,
this Act, the regulations, the model
rules or the cemetery trust rules
(if any), the cemetery trust may permit
5 interments at the reopened public
cemetery or reopened part of the public
cemetery.".
40 Surrender to cemetery trust of unexercised right of
interment by sole holder
10 In section 82(2)(a) of the Cemeteries and
Crematoria Act 2003 after "for administration"
insert "and any maintenance costs".
41 Surrender to cemetery trust of exercised right of
interment by sole holder
15 (1) For section 83(2) of the Cemeteries and
Crematoria Act 2003 substitute--
"(2) On the surrender of a right of interment to a
cemetery trust under subsection (1)--
(a) subject to subsection (2A), the
20 cemetery trust must pay to the holder a
refund based on the current cemetery
trust fee payable for the same type of
right of interment less--
(i) the relevant cemetery trust fee for
25 administration and any
maintenance costs; and
(ii) the restoration costs, if any; and
(b) the person surrendering the right of
interment has no further entitlements or
30 responsibilities under that right of
interment.
(2A) No refund is payable to a person
surrendering a right of interment to a
cemetery trust under subsection (1) if, at the
35 time of the surrender, human remains are
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interred at the place of interment to which
the surrendered right of interment applied.".
(2) For section 83(3)(b) of the Cemeteries and
Crematoria Act 2003 substitute--
5 "(b) if there are no human remains interred in the
place of interment to which the surrendered
right of interment applied, grant a right of
interment in respect of the place of interment
to which the surrendered right of interment
10 applied--
(i) for interring human remains in a public
grave; or
(ii) for interring human remains in that
place of interment.".
15 42 Application to carry out lift and re-position
procedure
(1) In section 88(1) of the Cemeteries and
Crematoria Act 2003 after "holder of the right of
interment" insert ", or a person acting on behalf of
20 that holder,".
(2) After section 88(2)(a) of the Cemeteries and
Crematoria Act 2003 insert--
"(ab) in the case of an application made by a
person acting on behalf of a holder of a right
25 of interment, include a written authorisation
from that holder for the person to act on the
holder's behalf; and".
43 Statute law revision
In section 58 of the Cemeteries and Crematoria
30 Act 2003 for "section 125" substitute
"section 140".
__________________
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Part 4--General
s. 44
PART 4--GENERAL
44 Repeal of amending Act
This Act is repealed on 1 July 2011.
Note
5 The repeal of this Act does not affect the continuing operation of
the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
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Cemeteries and Crematoria Amendment Bill 2009
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
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