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PARLIAMENT OF VICTORIA
Cemeteries and Crematoria Act 2003
Victorian Legislation and Parliamentary Documents
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purposes 1
2. Commencement 2
3. Definitions 2
PART 2--CEMETERIES AND CEMETERY TRUSTS 6
4. Establishment of public cemeteries 6
5. Establishment of cemetery trusts 6
6. Constitution and membership of cemetery trusts 7
7. Cemetery trusts do not represent the Crown 7
8. Management of public cemeteries 7
9. Effect of order abolishing cemetery trust 9
10. Appointment of an administrator 9
11. Membership of cemetery trust not office of profit 10
12. Functions of cemetery trusts 11
13. General powers of cemetery trusts 11
14. Powers in respect of more than one cemetery 11
15. Power to delegate 11
16. Immunity of members of cemetery trust 12
17. Staff and other assistance 13
18. Secretary may give directions to cemetery trusts 13
PART 3--MANAGEMENT OF PUBLIC CEMETERIES 15
Division 1--General Management Powers 15
19. Power to carry out works in public cemetery 15
20. Setting aside areas 15
21. Establishment of a crematorium 15
22. Establishment of mausolea facilities 16
23. Secretary may revoke approvals 16
24. Interference with distribution of land 16
25. Model rules 17
26. Power to make cemetery trust rules 18
27. Approval and publication of cemetery trust rules 20
28. Governor in Council may revoke cemetery trust rules 20
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Division 2--Powers in Respect of Land 20
29. Effect of Division 20
Victorian Legislation and Parliamentary Documents
30. Cemetery trust may purchase or acquire land for cemetery 21
31. Minister may acquire land 21
32. Land Acquisition and Compensation Act 1986 applies 21
33. Land purchased or acquired vests in Crown 22
34. Land permanently reserved 22
35. References to acquiring authority 22
36. Power to grant licences over cemetery land 22
37. Power of trusts to lease cemetery land 23
38. Registrar of Titles to amend Register 23
Division 3--Financial Powers 24
39. Power to fix fees and charges for services 24
40. Secretary to approve fees and charges 24
41. Secretary to publish notice of approval 24
42. Secretary to publish fees and charges on the Internet 25
43. Fees and charges to increase by CPI 25
44. Waiver or reduction of fees or charges 26
45. Investment powers 27
46. Borrowing powers 27
47. Payments for private streets 28
Division 4--Accounts and Reports 28
48. Application of Division 28
49. Cemetery trust to keep accounts and records 28
50. Auditing of accounts and records 28
51. Secretary may ask for investigation 29
52. Report to Secretary on operations and accounts 29
Division 5--Management by Municipal Councils 30
53. Municipal council may manage public cemetery 30
54. Limits on power to delegate 30
55. Borrowing and investment powers of councils 31
56. Use of council funds 31
57. Report to Secretary 31
58. Secretary may inspect accounts and records 32
PART 4--CEMETERY RECORDS 33
59. Cemetery trust to keep records 33
60. Can the public inspect records? 33
61. Records as evidence 33
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PART 5--CLOSURE OF PUBLIC CEMETERIES AND HISTORIC
CEMETERY PARKS 35
Victorian Legislation and Parliamentary Documents
Division 1--Closure of Public Cemeteries 35
62. Order closing public cemetery 35
63. Effect of order closing public cemetery 35
64. What happens to rights of interment in a closed cemetery? 35
Division 2--Historic Cemetery Parks 36
65. Definitions 36
66. Application to Minister to approve conversion to a historic
cemetery park 37
67. Minister may approve conversion to historic cemetery park 37
68. Rights of interment cancelled 38
69. Cemetery trust to notify holders of rights of interment 38
70. Cemetery trust to prepare plan of existing places of interment 39
71. Cemetery trust may remove memorials 39
72. What happens if a right of interment is cancelled under this
Division? 40
PART 6--RIGHTS OF INTERMENT IN A PUBLIC CEMETERY 41
Division 1--Rights of Interment Generally 41
73. Cemetery trust may grant right of interment 41
74. How long does a right of interment last? 41
75. What types of rights of interment can be granted? 41
76. Right of interment may be allocated or unallocated 42
77. Entitlements of right of interment for interring human remains 42
78. Exercising a right of interment 43
Division 2--Transfer and Surrender 44
79. Can a right of interment be transferred to another person? 44
80. Transfer of right of interment must be recorded 44
81. Offence to receive certain consideration for right of interment 44
82. Surrender to cemetery trust of unexercised right of interment
by sole holder 45
83. Surrender to cemetery trust of exercised right of interment by
sole holder 45
84. Surrender to cemetery trust of right of interment--more than
one holder 46
Division 3--Conversion of Limited Rights of Interment 46
85. Cemetery trust to offer to convert 25 year limited right of
interment 46
86. Cemetery trust may remove cremated human remains and
memorial 47
87. Conversion or extension of a 25 year limited right of interment 48
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Division 4--Lift and Re-position Procedure 49
88. Application to carry out lift and re-position procedure 49
Victorian Legislation and Parliamentary Documents
89. Cemetery trust may approve or refuse application 49
90. Approval to carry out lift and re-position procedure without
exhumation licence 50
Division 5--Cancellation and Discontinuance 51
91. When can a cemetery trust cancel a right of interment? 51
92. What happens if a right of interment is cancelled? 51
93. Order discontinuing granting rights of interment 52
94. Effect of order discontinuing granting rights of interment 52
PART 7--MEMORIALS, PLACES OF INTERMENT AND
BUILDINGS FOR CEREMONIES 54
Division 1--Memorials and Places of Interment 54
95. Offence to desecrate memorials 54
96. Offence to desecrate places of interment 54
Division 2--Cemetery Trust Approvals 54
97. Definition of "place of interment" limited 54
98. Application for establishment or alteration of memorials and
places of interment 55
99. Cemetery trust may approve or refuse the application 55
100. Cemetery trust may remove memorials or places of interment 57
101. Approval for establishment or alteration of a building for
ceremonies 57
102. Cemetery trust may approve or refuse the application 58
103. Cemetery trust may remove building for ceremonies 59
Division 3--Maintenance of Memorials, Places of Interment and
Buildings for Ceremonies 60
104. Duty to maintain memorial or place of interment or buildings
for ceremonies 60
105. What is meant by a safe and proper condition? 60
106. Powers of a cemetery trust--memorials and places of interment 61
107. Powers of a cemetery trust--buildings for ceremonies 61
108. Recovery of costs and expenses 62
109. What if the holder of right of interment or responsible person
cannot be found? 63
110. Cemetery trust may repair or maintain from other funds 63
111. Cemetery trust may enter agreements to maintain memorials
and places of interment 64
112. Cemetery trust may sell and supply memorials 64
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PART 8--INTERMENT OF BODILY REMAINS 65
Division 1--Interment Generally 65
Victorian Legislation and Parliamentary Documents
113. Bodily remains interred for perpetuity 65
114. Unlawful interment 65
115. Offence to inter bodily remains in public cemetery without
interment authorisation 65
Division 2--Interment Authorisations 65
116. Application for interment authorisation 65
117. Offence to make false statement in application for interment
authorisation 67
118. Grant of interment authorisation 67
119. Conditions on interment authorisation 67
120. Offence to fail to comply with interment authorisation 67
Division 3--Interment Approvals 68
121. Application for interment approval for interment other than
in a public cemetery 68
122. Offence to make false statement in application for interment
approval 69
123. Grant of interment approval 69
124. Conditions on interment approval 69
125. Offence to fail to comply with interment approval 70
126. Notice of interment approval to Registrar of Titles 70
127. Secretary to notify Registrar of Titles to remove notice 70
PART 9--CREMATION 72
Division 1--Cremation Generally 72
128. Interment of cremated human remains 72
129. Unlawful cremation 72
130. Offence to cremate without cremation authorisation 72
Division 2--Cremation Authorisation 73
131. Application for cremation authorisation 73
132. Offence to make false statement in application for cremation
authorisation 74
133. Grant of cremation authorisation 74
Division 3--Approvals by Secretary 74
134. Secretary may grant cremation approval 74
135. Application for approval to cremate in a place other than a
crematorium in a public cemetery 75
136. Approval by Secretary 76
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137. Offence to make false statement in application to Secretary 76
138. Who can sign certificate of a registered medical practitioner
authorising cremation? 77
Victorian Legislation and Parliamentary Documents
139. Refusal to sign certificate of registered medical practitioner
authorising cremation 77
140. Offence to make false statement in certificate of registered
medical practitioner authorising cremation 77
141. Offence to inter cremated human remains in public cemetery
without authority 78
PART 10--INTERMENT AND CREMATION OF DECEASED
POOR PERSONS 79
142. Prescribed person may apply for order 79
143. Magistrates' Court may make order 79
144. Order to generally specify cremation 80
145. Trust must comply with order 80
PART 11--OTHER DISPOSITION OF HUMAN REMAINS 81
Division 1--Disposal Other Than by Interment or Cremation 81
146. Disposal by methods other than interment or cremation 81
147. Secretary may grant approval 81
148. Secretary may vary or revoke approval 81
149. Cemetery trust to cease using method if approval revoked 82
Division 2--Interment or Cremation of Body Parts 82
150. Interment or cremation of body parts 82
151. Application for interment or cremation of body parts 82
152. Grant of authorisation 83
153. Offence to inter body parts in public cemetery without
authority 83
PART 12--EXHUMATION AND REMOVAL 84
154. Part does not apply to exhumation under Coroners Act 84
155. Offence to exhume other than in accordance with this Act 84
156. Application to Secretary for exhumation licence 84
157. Grant of exhumation licence 84
158. Exhumation licence required to move remains to another
location 85
159. Offence to fail to comply with exhumation licence 85
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PART 13--ENFORCEMENT 86
Division 1--Enforcement Powers 86
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160. Appointment of authorised officers 86
161. Identity card 86
162. Offence not to produce identity card 86
163. Powers of entry and inspection 86
164. Retention and return of seized documents or equipment 88
165. Search warrants 88
166. Announcement before entry 90
167. Details of warrant to be given to occupier 91
168. Copies of seized documents 91
169. Refusal or failure to comply with requirement 91
170. Offence to hinder or obstruct authorised officer 92
171. Offence to give false or misleading information 92
172. Protection against self-incrimination 92
173. Offence to impersonate authorised officer 92
174. Who may prosecute? 93
175. Extended period to prosecute certain offences 93
Division 2--Offences 93
176. Offence to dispose of falsely identified bodily remains 93
177. Indictable offences 93
178. Offences by bodies corporate 94
PART 14--GENERAL 95
179. Review by VCAT 95
180. Regulations and model rules 95
PART 15--REPEALS, TRANSITIONAL PROVISIONS AND
CONSEQUENTIAL AMENDMENTS 98
181. Cemeteries Act 1958 repealed 98
182. Section 32 of National Parks Act 1975 substituted 98
32. Port Campbell National Park 98
183. Amendment to the Summary Offences Act 1966 98
184. Amendment to Magistrates' Court Act 1989 99
185. New section inserted into the Crimes Act 1958 100
(5) Corpses 100
34B. Offence to interfere with corpse of a human being 100
186. Transitional provisions 101
__________________
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SCHEDULES 102
SCHEDULE 1--Membership and Procedure of Cemetery Trusts 102
Victorian Legislation and Parliamentary Documents
SCHEDULE 2--Transitional Provisions 105
ENDNOTES 113
INDEX 114
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PARLIAMENT OF VICTORIA
Initiated in Assembly 26 August 2003
Victorian Legislation and Parliamentary Documents
A BILL
to provide for the management and operation of cemeteries and
crematoria, to repeal the Cemeteries Act 1958, to amend the Crimes
Act 1958 and to consequentially amend other Acts and for other
purposes.
Cemeteries and Crematoria Act 2003
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purposes
The main purposes of this Act are--
(a) to provide for the management and operation
5 of cemeteries and crematoria; and
(b) to repeal the Cemeteries Act 1958.
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1
Cemeteries and Crematoria Act 2003
Act No.
Part 1--Preliminary
s. 2
2. Commencement
This Act comes into operation on 1 July 2005.
Victorian Legislation and Parliamentary Documents
3. Definitions
(1) In this Act--
5 "authorised officer" means a person appointed
as an authorised officer under Part 13;
"bodily remains" means a corpse of a human
being, including a corpse of a still-born child
but does not include--
10 (a) body parts; or
(b) cremated human remains;
"body parts" means human tissue or a part of a
person where that tissue or part is not part of
a corpse and includes foetal remains which
15 are not a still-born child;
"building for ceremonies" means a building,
chapel or other place of worship or
commemoration for the use of a particular
faith, religion or cultural group;
20 "cemetery trust" means a cemetery trust
established under Part 2;
"cemetery trust fee" means a fee or charge or
scale of fees and charges set under section 39
and approved under section 40;
25 "cemetery trust rules" means rules made by a
cemetery trust under section 26;
"closed cemetery" means a cemetery or part of a
cemetery to which an order under section 62
applies;
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"cremated human remains" means--
(a) a corpse of a human being (including a
Victorian Legislation and Parliamentary Documents
corpse of a still-born child) which has
been cremated in a crematorium;
5 (b) body parts which have been cremated
in a crematorium;
"cremation approval" means an approval to
cremate bodily remains at a crematorium in a
public cemetery granted by the Secretary
10 under section 134;
"cremation authorisation" means an
authorisation to cremate bodily remains
granted by a cemetery trust under
section 133;
15 "crematorium" means a building or structure
fitted with appliances for the purposes of
cremating bodily remains;
"exhumation licence" means a licence to
exhume or remove human remains granted
20 by the Secretary under Part 12;
"human remains" means--
(a) bodily remains;
(b) cremated human remains;
(c) body parts;
25 "interment" means the interring, burial or
placing of human remains in a place of
interment and, in relation to cremated human
remains, includes the interment of those
remains whether or not the remains are
30 enclosed in a receptacle;
"interment approval" means an approval
granted by the Secretary under Part 8 to inter
bodily remains in a place other than a public
cemetery;
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"interment authorisation" means an
authorisation granted by a cemetery trust
under Part 8 to inter bodily remains in a
Victorian Legislation and Parliamentary Documents
public cemetery for which the cemetery trust
5 is responsible;
"lift and re-position procedure" means the
procedure described in section 90;
"memorial" means a monument, tombstone,
headstone, ledger, cenotaph, plaque or other
10 method of memorialising a deceased person
where that memorial is within a public
cemetery;
"model rules" means model rules made in
accordance with section 25;
15 "municipal council" means a Council within the
meaning of the Local Government Act
1989;
"place of interment" means a grave, vault,
mausoleum, niche wall or any other structure
20 or plot used for the interment of human
remains;
"public grave" means a grave for multiple
interments in which more than one person
may be interred and in respect of which more
25 than one person may be granted a right of
interment that permits one interment only
and no re-use of the grave by the holder of
the right of interment;
"registered medical practitioner" has the same
30 meaning as it has in the Medical Practice
Act 1994;
"right of interment" means a right of interment
granted by a cemetery trust in accordance
with Part 6;
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"Secretary" means Secretary to the Department
of Human Services;
Victorian Legislation and Parliamentary Documents
"still-born child" has the same meaning as it has
in the Births, Deaths and Marriages
5 Registration Act 1996;
"transfer", in relation to a right of interment,
means--
(a) sale; or
(b) gift; or
10 (c) bequest in a will; or
(d) other assignment.
(2) If under the Public Sector Management and
Employment Act 1998 the name of the
Department of Human Services is changed, a
15 reference in the definition of "Secretary" in sub-
section (1) to that Department must, from the date
that the name is changed, be treated as a reference
to the Department by its new name.
__________________
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PART 2--CEMETERIES AND CEMETERY TRUSTS
Victorian Legislation and Parliamentary Documents
4. Establishment of public cemeteries
(1) The Governor in Council, by order published in
the Government Gazette, may establish a public
5 cemetery.
(2) A public cemetery may only be established on
Crown land reserved or deemed to be reserved for
the purposes of cemeteries and crematoria under
section 4 of the Crown Land (Reserves) Act
10 1978 or any corresponding previous enactment.
(3) The Order must specify the land in respect of
which the public cemetery is established.
(4) The Governor in Council, by order published in
the Government Gazette, may vary an order made
15 under sub-section (1)--
(a) to change the name of a public cemetery; or
(b) to include additional reserved Crown land in
a public cemetery; or
(c) to remove any land that has ceased to be
20 reserved for the purposes of a cemetery from
a public cemetery.
5. Establishment of cemetery trusts
(1) The Governor in Council, by order published in
the Government Gazette, may establish a
25 cemetery trust.
(2) A cemetery trust--
(a) is a body corporate with perpetual
succession; and
(b) has a common seal; and
30 (c) may sue and be sued in its corporate name;
and
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(d) may acquire hold and dispose of real and
personal property; and
Victorian Legislation and Parliamentary Documents
(e) may do and suffer all acts and things that a
body corporate may by law do and suffer.
5 (3) The common seal of each cemetery trust must be
kept as directed by the trust.
(4) All courts must take judicial notice of the imprint
of the common seal on a document and, until the
contrary is proved, must presume that the
10 document was properly sealed.
6. Constitution and membership of cemetery trusts
(1) A cemetery trust consists of not less than 3 and
not more than 11 members appointed by the
Governor in Council on the recommendation of
15 the Minister.
(2) Despite sub-section (1), in the case of a closed
cemetery or a historic cemetery park, a cemetery
trust which manages that cemetery may consist of
one member.
20 (3) Schedule 1 has effect with respect to the
membership and procedure of a cemetery trust.
7. Cemetery trusts do not represent the Crown
A cemetery trust does not represent and is not to
be taken to be part of the Crown.
25 8. Management of public cemeteries
(1) The Governor in Council, by order published in
the Government Gazette--
(a) may appoint--
(i) a cemetery trust to manage one or more
30 public cemeteries;
(ii) a municipal council to manage one or
more public cemeteries;
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(b) may cancel any appointment made under
paragraph (a);
Victorian Legislation and Parliamentary Documents
(c) may change the name of a cemetery trust;
(d) may abolish any cemetery trust and transfer
5 all its assets and liabilities to another
cemetery trust, a municipal council or to
another person or body, including the State.
(2) An order made under this section--
(a) may provide for the transfer of--
10 (i) assets and liabilities (whether
contingent or otherwise);
(ii) duties and obligations in relation to
staff;
(iii) duties and obligations under contracts
15 or other arrangements;
(iv) records and registers; and
(b) may make provision for any other matter
which, in the opinion of the Governor in
Council, is necessary or expedient for the
20 effective operation of that order; and
(c) may include savings, transitional or
consequential provisions to facilitate the
operation of the order.
(3) If the Governor in Council makes an order under
25 this section, the order takes effect--
(a) on the date the order is published in the
Government Gazette; or
(b) if a later date is specified in the order, on that
later date.
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9. Effect of order abolishing cemetery trust
On the abolition of a cemetery trust by order
Victorian Legislation and Parliamentary Documents
under section 8, subject to that order--
(a) the cemetery trust is abolished; and
5 (b) the cemetery trust, municipal council or
other person or body to which the abolished
cemetery trust's assets and liabilities are
transferred becomes the successor in law to
the abolished cemetery trust; and
10 (c) unless a contrary intention appears, any
reference to the abolished cemetery trust in
any Act, subordinate instrument, certificate
of title, agreement or other document is to be
construed as a reference to the cemetery
15 trust, municipal council or other person or
body to which the abolished cemetery trust's
assets and liabilities were transferred.
10. Appointment of an administrator
(1) On the recommendation of the Minister, the
20 Governor in Council, by order published in the
Government Gazette, may appoint an
administrator to manage a public cemetery.
(2) The Minister may only make a recommendation
referred to in sub-section (1) if, in his or her
25 opinion--
(a) a public cemetery is being inefficiently or
incompetently managed; or
(b) the appointment is necessary to protect the
interests of the public.
30 (3) On the appointment of an administrator--
(a) the members of the cemetery trust of the
public cemetery cease to hold office; and
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(b) the administrator acquires all the functions,
powers, immunities and duties of the
members of the cemetery trust.
Victorian Legislation and Parliamentary Documents
(4) The Governor in Council, by order published in
5 the Government Gazette, may replace an
administrator--
(a) with another administrator; or
(b) by declaring that the administration is to end
and by appointing members to the cemetery
10 trust in accordance with section 6.
(5) If the Governor in Council makes an order under
sub-section (4), the administrator who is being
replaced ceases to hold office--
(a) on the date the order is published in the
15 Government Gazette; or
(b) if a later date is specified in the order, on that
later date.
11. Membership of cemetery trust not office of profit
A member of a cemetery trust is not to be taken to
20 hold an office or place of profit under the Crown
which would--
(a) prevent the member sitting or voting as a
member of the Legislative Council or
Legislative Assembly; or
25 (b) make void the member's election to the
Legislative Council or the Legislative
Assembly; or
(c) prevent the member continuing to be a
member of the Legislative Council or the
30 Legislative Assembly; or
(d) subject the member of the Legislative
Council or the Legislative Assembly to
liability to a penalty under the Constitution
Act 1975.
10
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12. Functions of cemetery trusts
(1) The functions of a cemetery trust are--
Victorian Legislation and Parliamentary Documents
(a) to properly and efficiently manage and
maintain each public cemetery for which it is
5 responsible; and
(b) to carry out any other function conferred on
a cemetery trust by or under this Act or any
other Act.
(2) In exercising its functions, a cemetery trust must
10 have regard to--
(a) its obligations in relation to funding of the
perpetual maintenance of the public
cemetery for which it is responsible; and
(b) the cultural and religious values of the
15 community; and
(c) the heritage values (if any) of the public
cemetery for which it is responsible.
13. General powers of cemetery trusts
A cemetery trust may do anything necessary or
20 convenient to enable it to carry out its functions.
14. Powers in respect of more than one cemetery
If a cemetery trust is responsible for the
management of more than one public cemetery,
the cemetery trust may manage all the cemeteries
25 as if they were one cemetery.
15. Power to delegate
(1) Subject to sub-section (2), a cemetery trust may
delegate to a member of the trust, the secretary of
the trust (by whatever title called) or any other
30 employee of the trust its powers or functions
under this Act other than--
(a) a power under section 26 (to make cemetery
trust rules); or
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(b) a power under Division 2 of Part 3 (powers
in respect of land); or
Victorian Legislation and Parliamentary Documents
(c) a power under section 21 (power to establish
crematoria); or
5 (d) a power under section 22 (power to establish
mausolea facilities); or
(e) a power under section 39 (to fix fees or
charges); or
(f) a power under section 45 or 46 (borrowing
10 and investment powers); or
(g) this power of delegation.
(2) A cemetery trust may delegate its power or
function to approve an application for a lift and re-
position procedure to--
15 (a) a member of the trust; or
(b) a person approved by the Secretary for the
purposes of this section.
(3) A delegation under this section must be in writing.
(4) A cemetery trust must keep--
20 (a) a copy of any delegation of a power or
function under this section; and
(b) a record of all the delegations it has made
under this section.
16. Immunity of members of cemetery trust
25 (1) A member of a cemetery trust is not personally
liable for anything done or omitted to be done in
good faith--
(a) in the exercise of a power or the carrying out
of a function under this Act or the
30 regulations; or
(b) in the reasonable belief that the act or
omission was in the exercise of a power or
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the carrying out of a function under this Act
or the regulations.
Victorian Legislation and Parliamentary Documents
(2) Any liability resulting from an act or omission
that would, but for sub-section (1), attach to a
5 member of the cemetery trust attaches instead to
the cemetery trust.
17. Staff and other assistance
(1) A cemetery trust may employ any persons it
considers necessary for the purposes of carrying
10 out its functions.
(2) A cemetery trust may engage any professional,
technical and other assistance it considers
necessary for the purposes of carrying out its
functions.
15 18. Secretary may give directions to cemetery trusts
(1) The Secretary may give directions to a cemetery
trust with respect to--
(a) the manner in which the cemetery trust is to
manage and maintain any public cemetery
20 for which it is responsible; and
(b) the records to be kept by the cemetery trust;
and
(c) the expenditure of funds of the cemetery
trust; and
25 (d) the carrying out of any other function or the
exercise of any other power of the cemetery
trust under--
(i) this Act or any other Act; or
(ii) the regulations made under this Act
30 (including the model rules) or
regulations made under any other Act;
or
(iii) cemetery trust rules.
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(2) A direction given under this section--
(a) must be in writing; and
Victorian Legislation and Parliamentary Documents
(b) may apply to--
(i) an individual cemetery trust; or
5 (ii) a class of cemetery trusts; or
(iii) all cemetery trusts.
(3) A cemetery trust must comply with a direction
applying to it under this section.
__________________
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PART 3--MANAGEMENT OF PUBLIC CEMETERIES
Victorian Legislation and Parliamentary Documents
Division 1--General Management Powers
19. Power to carry out works in public cemetery
In carrying out its functions under this Act, a
5 cemetery trust may carry out or permit the
carrying out of works in a public cemetery for
which it is responsible.
20. Setting aside areas
(1) A cemetery trust must set aside areas for the
10 interment of human remains in a public cemetery
for which it is responsible.
(2) A cemetery trust may set aside areas for the
purposes of managing a public cemetery for which
it is responsible.
15 (3) Without limiting sub-section (2), a cemetery trust
may set aside areas for--
(a) interment of human remains of persons of a
particular religious denomination or faith or
community or other group; and
20 (b) buildings for ceremonies; and
(c) crematoria; and
(d) places of interment or memorials; and
(e) parks, gardens, plantations or other
buildings, structures or places that are
25 required for the effective operation or use of
the public cemetery.
21. Establishment of a crematorium
(1) With the prior approval in writing of the
Secretary, a cemetery trust may establish and
30 operate a crematorium in a public cemetery for
which it is responsible.
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(2) A cemetery trust must not establish and operate a
crematorium in any area set aside for interments
of persons of a particular religious denomination
Victorian Legislation and Parliamentary Documents
or faith or community or other group.
5 22. Establishment of mausolea facilities
With the prior approval in writing of the
Secretary, a cemetery trust may establish
mausolea facilities in a public cemetery for which
it is responsible.
10 23. Secretary may revoke approvals
(1) The Secretary may--
(a) revoke an approval of the establishment and
operation of a crematorium under section 21;
and
15 (b) direct that cremations be discontinued at a
crematorium.
(2) The Secretary may--
(a) revoke an approval of the establishment of
mausolea facilities under section 22; and
20 (b) direct that interments be discontinued at any
mausolea facilities.
(3) A revocation under this section must be in writing.
24. Interference with distribution of land
(1) In the management of a public cemetery, a
25 cemetery trust must not interfere directly or
indirectly with--
(a) the original distribution of lands or
hereditaments made or intended to be made
by the deed of grant or other conveyance to
30 and amongst the separate and distinct
religious denominations and communions; or
(b) the existing distribution of land to particular
community or other groups.
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(2) Despite sub-section (1), a cemetery trust may
apply to the Secretary for approval to alter the
existing distribution of land which has been
Victorian Legislation and Parliamentary Documents
allocated to--
5 (a) a particular religious denomination or
communion; or
(b) a particular community or other group.
(3) If a cemetery trust makes an application under
sub-section (2), the Secretary must not approve
10 any alteration to an existing distribution of land
unless the Secretary is satisfied that--
(a) the re-distribution only relates to clearly
identifiable parcels of land, not individual
places of interment; and
15 (b) that the land to which the application relates
does not contain any existing interments or
pre-existing rights of interment; and
(c) any requirements under the Heritage Act
1995 and the Planning and Environment
20 Act 1987 (as the case requires) have been
complied with.
(4) The approval of the Secretary under this section
must be given in writing.
25. Model rules
25 (1) The regulations may prescribe model rules for or
with respect to the general care, protection and
management of a public cemetery by a cemetery
trust.
(2) The model rules apply to all public cemeteries
30 unless--
(a) a cemetery trust makes cemetery trust rules;
and
(b) those cemetery trust rules are approved and
published in accordance with section 27.
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26. Power to make cemetery trust rules
(1) A cemetery trust may make rules for or with
Victorian Legislation and Parliamentary Documents
respect to the general care, protection and
management of a public cemetery for which the
5 cemetery trust is responsible.
(2) Without limiting sub-section (1), cemetery trust
rules may be made for or with respect to--
(a) the disposition of human remains;
(b) the granting of rights of interment;
10 (c) the protection of buildings, memorials,
structures, parks, gardens, plantations and
enclosures;
(d) regulating the behaviour of persons in the
cemetery or crematorium to ensure good
15 order and decency;
(e) regulating vehicular traffic in the cemetery;
(f) the position and depth of places of interment
which are graves;
(g) the position of places of interment which are
20 vaults and mausolea facilities, the
construction of coffins to be put into vaults
and mausolea facilities and the covering of
vaults and mausolea facilities to prevent the
escape of noxious fumes;
25 (h) conditions to be complied with by persons
who conduct interments, cremations or
ceremonies in the cemetery;
(i) conditions to be complied with by persons
who undertake works in the cemetery;
30 (j) the hours of opening or operation of the
cemetery or crematorium in the cemetery.
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(3) Cemetery trust rules may impose a penalty not
exceeding 20 penalty units for any contravention
of the cemetery trust rules.
Victorian Legislation and Parliamentary Documents
(4) Cemetery trust rules--
5 (a) may be of general or limited application;
(b) may differ according to differences in time,
place or circumstance;
(c) may leave any matter or thing to be from
time to time determined, approved or
10 dispensed with by the Secretary or a
cemetery trust;
(d) may apply, adopt or incorporate any matter
contained in any document, code, standard,
rule, specification or method, formulated,
15 issued, prescribed or published by any other
person, whether--
(i) wholly or partially or as amended by
the cemetery trust rules; or
(ii) as formulated, issued, prescribed or
20 published at the time the cemetery trust
rules are made or at any time before
then; or
(iii) as formulated, issued, prescribed or
published from time to time.
25 (5) Cemetery trust rules may incorporate all or any of
the model rules.
(6) A cemetery trust rule--
(a) must not be inconsistent with any Act or
statutory rule; and
30 (b) is inoperative to the extent that it is
inconsistent with any Act or statutory rule.
(7) A cemetery trust rule may be inconsistent with the
model rules.
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27. Approval and publication of cemetery trust rules
(1) A cemetery trust rule does not come into
Victorian Legislation and Parliamentary Documents
operation until it has been--
(a) approved by the Governor in Council; and
5 (b) published in the Government Gazette.
(2) A cemetery trust rule is not a statutory rule for the
purposes of the Subordinate Legislation Act
1994.
28. Governor in Council may revoke cemetery trust
10 rules
(1) Without limiting section 27 of the Interpretation
of Legislation Act 1984, the Governor in Council,
by order published in the Government Gazette,
may revoke cemetery trust rules.
15 (2) An order under sub-section (1)--
(a) may revoke cemetery trust rules in whole or
in part; and
(b) takes effect on the day it is published in the
Government Gazette.
20 (3) If cemetery trust rules are wholly revoked by an
order under sub-section (1), the model rules apply
to the public cemetery for which the cemetery
trust is responsible and in respect of which the
order is made from the date that the order takes
25 effect.
Division 2--Powers in Respect of Land
29. Effect of Division
This Division has effect despite anything to the
contrary in the Land Act 1958 or the Crown
30 Land (Reserves) Act 1978.
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30. Cemetery trust may purchase or acquire land for
cemetery
Victorian Legislation and Parliamentary Documents
(1) A cemetery trust, with the approval of the
Minister, may purchase or acquire land for the
5 purposes of a public cemetery for which it is
responsible.
(2) A cemetery trust cannot purchase or acquire land
for any other purpose.
(3) The Minister must not approve the purchase or
10 acquisition of the land unless he or she is satisfied
that it is necessary or desirable that the land be
purchased or acquired for the purposes of the
public cemetery.
(4) If the Minister is satisfied that the cemetery trust
15 has sufficient funds available for the purchase or
acquisition of land for the purposes of a public
cemetery, the Minister may direct the cemetery
trust to use its own funds for the purchase or
acquisition.
20 31. Minister may acquire land
The Minister may purchase or compulsorily
acquire land for cemeteries and crematoria
purposes.
32. Land Acquisition and Compensation Act 1986
25 applies
(1) The Land Acquisition and Compensation Act
1986 applies to the purchase or compulsory
acquisition of land under section 31 and for that
purpose--
30 (a) the Cemeteries and Crematoria Act 2003
is the special Act; and
(b) the Minister is the Authority.
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(2) Any land compulsorily acquired by the Minister
under section 31--
Victorian Legislation and Parliamentary Documents
(a) vests in the Crown under section 24 of the
Land Acquisition and Compensation Act
5 1986 despite anything to the contrary in that
section; and
(b) is deemed to be unalienated Crown land.
33. Land purchased or acquired vests in Crown
Subject to section 32(2), on the acquisition of any
10 land purchased or acquired by a cemetery trust or
the Minister under this Division, that land vests in
the Crown as unalienated Crown land.
34. Land permanently reserved
On the acquisition of any land purchased or
15 acquired by a cemetery trust or the Minister under
this Division that land is deemed to be
permanently reserved under section 4 of the
Crown Land (Reserves) Act 1978 for cemeteries
and crematoria purposes.
20 35. References to acquiring authority
Section 54 of the Transfer of Land Act 1958
applies in relation to the purchase or acquisition of
land by a cemetery trust or the Minister under this
Division as if the Crown were the acquiring
25 authority for the purposes of that section.
36. Power to grant licences over cemetery land
(1) Subject to this section, a cemetery trust may grant
a licence to enter and use any part of the land in a
public cemetery for which it is responsible or any
30 building on that land for any purpose approved by
the Minister.
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(2) The Minister must not give approval under this
section unless he or she is satisfied that the licence
is for a purpose that is not detrimental to the
Victorian Legislation and Parliamentary Documents
purpose for which the land is reserved.
5 (3) A licence granted under this section--
(a) must be for a period not exceeding 3 years;
and
(b) is subject to the terms and conditions
determined by the cemetery trust and
10 approved by the Minister.
37. Power of trusts to lease cemetery land
(1) Subject to this section, a cemetery trust may grant
a lease of any land in the public cemetery for
which it is responsible for any purpose approved
15 by the Minister.
(2) The Minister must not give approval under this
section unless he or she is satisfied that the
purpose for which the lease is to be granted is not
detrimental to the purpose for which the land is
20 reserved.
(3) A lease granted under this section--
(a) must be for a specified term not exceeding
21 years; and
(b) is subject to any covenants, exceptions,
25 reservations, terms and conditions that are
determined by the cemetery trust and
approved by the Minister.
38. Registrar of Titles to amend Register
The Registrar of Titles must make any recordings
30 in or amendments to the Register under the
Transfer of Land Act 1958 that are necessary
because of the operation of any provision of this
Division.
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Division 3--Financial Powers
39. Power to fix fees and charges for services
Victorian Legislation and Parliamentary Documents
(1) A cemetery trust, from time to time, may fix fees
and charges or a scale of fees and charges for its
5 services.
(2) In fixing fees and charges under this section, a
cemetery trust must have regard to--
(a) the costs of operating and managing the
public cemetery; and
10 (b) the need to provide for the maintenance of
the public cemetery in perpetuity.
(3) A cemetery trust may fix different fees and
charges for different cases or classes of cases.
(4) Fees and charges fixed by a cemetery trust under
15 this section must be approved by the Secretary
under section 40.
40. Secretary to approve fees and charges
(1) On fixing a fee or charge or scale of fees and
charges under section 39, a cemetery trust must
20 notify the Secretary of those fees and charges.
(2) The Secretary may approve or disapprove a fee or
charge or scale of fees and charges fixed under
section 39 in whole or in part.
41. Secretary to publish notice of approval
25 (1) If the Secretary approves a fee or charge or a scale
of fees and charges under section 40, the Secretary
must cause a notice of that approval to be
published in the Government Gazette.
(2) A fee or charge or scale of fees and charges does
30 not take effect until notice of the Secretary's
approval is published in the Government Gazette.
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42. Secretary to publish fees and charges on the
Internet
Victorian Legislation and Parliamentary Documents
(1) If the Secretary approves a fee or charge or a scale
of fees and charges under section 40, the Secretary
5 must cause those fees and charges to be published
on the Internet.
(2) Nothing in this section prevents a cemetery trust
publishing their fees and charges or scale of fees
and charges by any other additional means.
10 43. Fees and charges to increase by CPI
(1) This section only applies--
(a) to a cemetery trust fee which is $50.00 or
more; and
(b) if the increase in the CPI for the current
15 March quarter in the relevant year is more
than the CPI for the previous March quarter.
(2) Not later than 1 June each year, the Secretary
must declare that cemetery trust fees to which this
section applies are, by force of this section,
20 increased in accordance with this section.
(3) A declaration under sub-section (2)--
(a) is to be made by notice published in the
Government Gazette; and
(b) takes effect on 1 July in the year in which it
25 is made; and
(c) applies to all cemetery trusts.
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(4) A cemetery trust fee to which this section applies
is increased by an amount calculated in
accordance with the following formula--
Victorian Legislation and Parliamentary Documents
B
A×
C
5 where--
"A" is the relevant cemetery trust fee as at 30
June in the relevant year; and
"B" is the CPI for the current March quarter in
the relevant year; and
10 "C" is the CPI for the previous March quarter.
(5) A cemetery trust fee increased in accordance with
this section must be rounded to the nearest whole
dollar, and in the case of 50 cents, be rounded up
to the next dollar.
15 (6) If the Australian Statistician changes the reference
base for the All Groups Consumer Price Index
number (for Melbourne), the new reference base
is to be used after the change.
(7) In this section--
20 "Australian Statistician" has the same meaning
as it has in the Australian Bureau of
Statistics Act 1975 of the Commonwealth;
"CPI" means the All Groups Consumer Price
Index number (for Melbourne) published by
25 the Australian Statistician;
"relevant year" means year in which a
declaration under sub-section (2) is made.
44. Waiver or reduction of fees or charges
A cemetery trust must not waive or reduce any
30 fees or charges that would otherwise be payable to
it under this Act except on the grounds of extreme
hardship or other special circumstance.
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45. Investment powers
(1) Subject to the direction of the Minister, a
Victorian Legislation and Parliamentary Documents
cemetery trust may invest its money in any
manner it sees fit.
5 (2) The Minister may give written directions as to
how a cemetery trust is to invest its money.
(3) A direction under sub-section (2) may--
(a) apply to--
(i) an individual cemetery trust; or
10 (ii) a class of cemetery trusts; or
(iii) all cemetery trusts.
(b) provide that any matter may be determined,
approved or dispensed with by the Secretary
or any employee or employees or class of
15 employees employed under Part 3 of the
Public Sector Management and
Employment Act 1998 in the Department of
Human Services.
46. Borrowing powers
20 (1) A cemetery trust may borrow money to enable it
to perform its functions and exercise its powers
under this Act.
(2) A cemetery trust--
(a) must not borrow money unless the prior
25 approval of the Treasurer has been obtained;
and
(b) must comply with any conditions imposed
by the Treasurer in that approval.
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47. Payments for private streets
A cemetery trust may pay to a municipal council a
Victorian Legislation and Parliamentary Documents
contribution towards the cost of the construction
and maintenance of any private street adjoining or
5 abutting a cemetery for which the trust is
responsible if that street is or was constructed
pursuant to the Local Government Act 1989 or
any corresponding previous enactment.
Division 4--Accounts and Reports
10 48. Application of Division
This Division does not apply to--
(a) a cemetery trust to which the Financial
Management Act 1994 applies; or
(b) a municipal council which is responsible
15 under this Act for the management of a
public cemetery.
49. Cemetery trust to keep accounts and records
(1) A cemetery trust must keep proper accounts and
records of its financial affairs.
20 (2) The accounts and records required to be kept
under sub-section (1) must contain the particulars
required by the Secretary.
(3) The financial year of a cemetery trust is the year
ending 30 June.
25 50. Auditing of accounts and records
(1) If directed to do so by the Secretary, a cemetery
trust must have its accounts and records audited
by a registered company auditor.
(2) If a cemetery trust does not receive a direction
30 under sub-section (1) in respect of a financial
year, the cemetery trust must have its accounts
and records--
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(a) verified by a statutory declaration--
(i) by at least 3 members of the cemetery
Victorian Legislation and Parliamentary Documents
trust; or
(ii) if there are less than 3 members of the
5 cemetery trust, by all members of that
trust; or
(b) audited by a registered company auditor.
51. Secretary may ask for investigation
If the Secretary believes it is appropriate to do so,
10 the Secretary may ask the Auditor-General or a
registered company auditor or other appropriate
person--
(a) to audit the accounts and records of a
cemetery trust; or
15 (b) to conduct an investigation into the financial
affairs of a cemetery trust.
52. Report to Secretary on operations and accounts
(1) A cemetery trust must submit a report in respect
of the exercise of its powers and functions under
20 this Act in relation to any public cemetery for
which it is responsible to the Secretary for each
financial year in respect of which it manages that
cemetery.
(2) A report under sub-section (1) must be in a form
25 and contain the particulars required by the
Secretary including--
(a) particulars of accounts and records kept by
the cemetery trust under section 49; and
(b) particulars relating to the operation of the
30 public cemetery and any crematorium in the
public cemetery for which the cemetery trust
is responsible.
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(3) A cemetery trust must submit a report under this
section for each financial year to the Secretary on
or before 1 September in the following financial
Victorian Legislation and Parliamentary Documents
year.
5 Division 5--Management by Municipal Councils
53. Municipal council may manage public cemetery
Except as otherwise provided in this Act, if a
municipal council is responsible under this Act for
the management of a public cemetery, this Act
10 applies in respect of that public cemetery and
municipal council as if the municipal council were
a cemetery trust responsible for the management
of that public cemetery.
54. Limits on power to delegate
15 (1) Despite anything to the contrary in the Local
Government Act 1989, a municipal council is not
authorised under that Act to delegate a power or
function set out in paragraphs (a), (b), (c), (d), (e)
or (g) of section 15(1).
20 (2) Despite section 15(2), a municipal council is not
authorised to delegate its power or function to
approve an application for a lift and re-position
procedure to any person other than--
(a) if a special committee of the kind referred to
25 in section 88 of the Local Government Act
1989 is established under section 86 of that
Act and any functions, duties or powers of a
municipal council under this Act have been
delegated to that special committee under the
30 Local Government Act 1989, the members
of that committee; or
(b) a person approved by the Secretary for the
purposes of this section.
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55. Borrowing and investment powers of councils
If a municipal council is responsible under this
Victorian Legislation and Parliamentary Documents
Act for the management of a public cemetery--
(a) sections 45 and 46 do not apply; and
5 (b) the Local Government Act 1989 applies in
respect of the borrowing and investment
powers of that council in the management of
the public cemetery.
56. Use of council funds
10 If a municipal council is responsible under this
Act for the management of a public cemetery, the
Local Government Act 1989 applies in respect of
funds or money received by that council in the
management of the public cemetery.
15 57. Report to Secretary
(1) A municipal council which is responsible under
this Act for the management of a public cemetery
must submit a report in respect of the exercise of
its powers and functions under this Act to the
20 Secretary for each financial year in respect of
which it manages that cemetery.
(2) A report under sub-section (1) must be in a form
and contain the particulars required by the
Secretary including--
25 (a) particulars of any accounts and records kept
under the Local Government Act 1989 to
the extent that they relate to the exercise of
any powers and functions under this Act; and
(b) particulars of any audit of those accounts;
30 and
(c) particulars relating to the operation of the
public cemetery and any crematoria in the
public cemetery for which the municipal
council is responsible.
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58. Secretary may inspect accounts and records
For the purpose of section 125 of the Local
Victorian Legislation and Parliamentary Documents
Government Act 1989, the Secretary or any
person authorised by the Secretary is authorised to
5 inspect the accounts and records of a municipal
council.
__________________
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PART 4--CEMETERY RECORDS
Victorian Legislation and Parliamentary Documents
59. Cemetery trust to keep records
A cemetery trust must ensure that, for each public
cemetery for which it is responsible, records
5 containing the prescribed information are kept in
respect of--
(a) interments; and
(b) places of interment; and
(c) cremations; and
10 (d) rights of interment.
60. Can the public inspect records?
(1) Subject to this Part, a cemetery trust must make
the information in the records required to be kept
under this Part available for inspection by any
15 person at the public cemetery for which that
cemetery trust is responsible at any reasonable
time for historical or research purposes.
(2) A cemetery trust may charge a fee or fees for the
reasonable costs incurred in providing the
20 information sought or copies or extracts of
information from the records required to be kept
under this Part.
Note: The Public Records Act 1973 also provides for the
keeping and inspection of public records.
25 61. Records as evidence
(1) A record required to be kept under this Part is
evidence in any proceedings of the interments,
places of interment, cremations or rights of
interment appearing in that record.
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Act No.
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s. 61
(2) A copy or extract from a record kept under this
Part by a cemetery trust and sealed by that
cemetery trust is evidence in any proceedings of
Victorian Legislation and Parliamentary Documents
the interments, places of interment, cremations or
5 rights of interment appearing in that copy or
extract.
__________________
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Part 5--Closure of Public cemeteries and Historic Cemetery Parks
s. 62
PART 5--CLOSURE OF PUBLIC CEMETERIES AND
HISTORIC CEMETERY PARKS
Victorian Legislation and Parliamentary Documents
Division 1--Closure of Public Cemeteries
62. Order closing public cemetery
5 The Governor in Council, by order published in
the Government Gazette, may close a public
cemetery or part of a public cemetery if--
(a) there has been no interment of human
remains at the public cemetery or in that part
10 of the public cemetery for at least 25 years;
and
(b) the cemetery trust responsible for the public
cemetery has not granted a right of interment
in relation to that cemetery or part of the
15 cemetery for at least 25 years.
63. Effect of order closing public cemetery
(1) On the making of an order under section 62--
(a) the public cemetery or part of the public
cemetery to which the order applies is
20 closed; and
(b) no further interments are permitted at the
closed cemetery, regardless of whether there
are any existing rights of interment in
relation to the closed cemetery.
25 (2) Subject to this Act, the regulations, the model
rules or the cemetery trust rules (if any), members
of the public may visit a closed cemetery.
64. What happens to rights of interment in a closed
cemetery?
30 (1) The holder of an unexercised right of interment at
a closed cemetery may request--
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(a) a refund based on the cemetery trust fee
payable for the same type of right of
interment immediately before the closure of
Victorian Legislation and Parliamentary Documents
the cemetery, less the relevant cemetery trust
5 fee for administration from the cemetery
trust which is responsible for managing the
closed cemetery; or
(b) the Secretary to direct the cemetery trust
which is responsible for managing the closed
10 cemetery to grant the holder a right of
interment in another cemetery for which that
cemetery trust is responsible either free of
charge or at a reduced rate.
(2) A request under sub-section (1) must be made in
15 writing.
(3) If the Secretary receives a request under sub-
section (1)(b), the Secretary, in his or her absolute
discretion, may direct a cemetery trust to grant to
the person making the request a new right of
20 interment in another cemetery for which that
cemetery trust is responsible either free of charge
or at a reduced rate.
(4) A cemetery trust must comply with a direction
under sub-section (3).
25 Division 2--Historic Cemetery Parks
65. Definitions
In this Division--
"approval to convert" means an approval
authorising the conversion of an eligible
30 cemetery to a historic cemetery park given
by the Minister under section 67;
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"eligible cemetery" means--
(a) a closed cemetery; or
Victorian Legislation and Parliamentary Documents
(b) a public cemetery to which an order
under section 93 discontinuing the
5 granting of rights of interment applies;
"historic cemetery park" means an eligible
cemetery or part of that cemetery which is
converted to parkland, whether or not any of
the memorials are removed;
10 "previous holder" in relation to a right of
interment, means the person who was the
holder of the right of interment immediately
before it was cancelled under this Division.
66. Application to Minister to approve conversion to a
15 historic cemetery park
(1) A cemetery trust responsible for the management
of an eligible cemetery may apply to the Minister
for an approval to convert the cemetery or part of
the cemetery to a historic cemetery park.
20 (2) An application under sub-section (1) must
include--
(a) a plan of the area proposed to be converted;
and
(b) a conservation management plan of the area
25 proposed to be converted; and
(c) details of the proposed conversion; and
(d) details of consultation undertaken with
relevant agencies, holders of rights of
interment and the public.
30 67. Minister may approve conversion to historic
cemetery park
(1) The Minister, after considering an application
under section 66, may--
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(a) approve the application; and
(b) authorise the cemetery trust of the eligible
Victorian Legislation and Parliamentary Documents
cemetery to convert the cemetery to a
historic cemetery park.
5 (2) An approval to convert must be in writing.
(3) An approval to convert may be granted subject to
conditions relating to--
(a) the disposition of any memorials or
structures in the eligible cemetery; and
10 (b) the maintenance of the area to be converted;
and
(c) any matters relating to heritage
considerations; and
(d) any other matters the Minister thinks
15 necessary or convenient to provide for in the
public interest.
(4) If an approval to convert has been given in respect
of the whole or any part of an eligible cemetery,
the cemetery trust responsible for the management
20 of that cemetery must not permit any further
interments in the area to which the approval to
convert applies.
68. Rights of interment cancelled
On the giving of an approval to convert in respect
25 of an eligible cemetery, any right of interment
existing in relation to the area to which the
approval to convert applies is cancelled.
69. Cemetery trust to notify holders of rights of
interment
30 As soon as practicable after a cemetery trust is
given an approval to convert, the cemetery trust
must take all reasonable steps to notify in writing
all holders of rights of interment in the area to
which the approval to convert applies that--
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(a) the cemetery trust has an approval to convert
the eligible cemetery to a historic cemetery
park; and
Victorian Legislation and Parliamentary Documents
(b) the holder of the right of interment may--
5 (i) approve the removal of any memorial
to which the right of interment applies;
and
(ii) take the memorial from the cemetery if
the holder so wishes; and
10 (c) the right of interment has been cancelled.
70. Cemetery trust to prepare plan of existing places of
interment
(1) Before removing any memorials under this
Division, a cemetery trust which has been given
15 an approval to convert must--
(a) prepare a plan of all the memorials in the
area to which the approval to convert applies
and which are to be removed; and
(b) record any inscriptions on memorials which
20 are to be removed.
(2) The plans and records made under sub-section (1)
are to be made available to the public for
inspection by the cemetery trust managing the
historic cemetery park if the records are kept by
25 that trust.
Note: The Public Records Act 1973 also provides for the
keeping and inspection of public records.
71. Cemetery trust may remove memorials
(1) A cemetery trust may remove any memorials or
30 other structures in the area to which an approval to
convert applies.
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(2) A cemetery trust may dispose of any memorial or
other structure removed under sub-section (1) as it
sees fit and must do so in a respectful and
Victorian Legislation and Parliamentary Documents
appropriate manner.
5 72. What happens if a right of interment is cancelled
under this Division?
(1) If an unexercised right of interment is cancelled
under this Division, the previous holder of that
right of interment may request that the cemetery
10 trust--
(a) pay to the holder a refund based on the
current cemetery trust fee payable for the
same type of right of interment, less the
relevant cemetery trust fee for
15 administration; or
(b) grant a right of interment to an alternative
place of interment in a public cemetery for
which the cemetery trust is responsible
instead of paying the refund.
20 (2) Subject to sub-section (3), on receiving a request
under this section, a cemetery trust must comply
with the request.
(3) If a request is made under sub-section (1)(b) and
the cemetery trust is not responsible for another
25 public cemetery, the Secretary may direct another
cemetery trust to provide a new right of interment
in a public cemetery for which that cemetery trust
is responsible to the previous holder free of charge
or at a reduced fee.
30 (4) A request under this section must be made in
writing.
__________________
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Cemeteries and Crematoria Act 2003
Act No.
Part 6--Rights of Interment in a Public Cemetery
s. 73
PART 6--RIGHTS OF INTERMENT IN A PUBLIC
CEMETERY
Victorian Legislation and Parliamentary Documents
Division 1--Rights of Interment Generally
73. Cemetery trust may grant right of interment
5 (1) A cemetery trust may grant to any person a right
of interment in a public cemetery for which it is
responsible for payment of the relevant cemetery
trust fee.
(2) A right of interment may be granted subject to any
10 conditions that the cemetery trust specifies in the
right of interment.
74. How long does a right of interment last?
(1) Subject to sub-section (2), a right of interment is
perpetual.
15 (2) A right of interment for the interment of cremated
human remains is for the period specified at the
time it is granted and may be either--
(a) perpetual; or
(b) for 25 years from the date it is granted unless
20 it is extended in accordance with this Part.
75. What types of rights of interment can be granted?
A cemetery trust may grant the following types of
rights of interment in a public cemetery for which
it is responsible--
25 (a) a right of interment for interring human
remains in a particular place of interment;
(b) a right of interment for interring human
remains in a public grave.
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s. 76
76. Right of interment may be allocated or unallocated
(1) A right of interment may be--
Victorian Legislation and Parliamentary Documents
(a) an allocated right of interment for a
particular place of interment in a public
5 cemetery; or
(b) an unallocated right of interment in a public
cemetery.
(2) An unallocated right of interment may be specific
to a certain class of places of interment in the
10 public cemetery or to a specific part of the public
cemetery to which the right of interment applies.
(3) If an unallocated right of interment is granted, the
cemetery trust must allocate a place of interment
of the type (if any) specified in the right of
15 interment at the time of the first exercise of that
right of interment.
(4) On an unallocated right of interment being first
exercised, it becomes an allocated right of
interment in respect of that place of interment.
20 (5) This section does not apply to a right of interment
for interring human remains in a public grave.
77. Entitlements of right of interment for interring
human remains
(1) A holder of a right of interment for interring
25 human remains in a particular place of
interment--
(a) may inter human remains at that place of
interment; and
(b) may establish or alter a memorial at that
30 place of interment; and
(c) if the human remains are cremated human
remains in a receptacle, may remove those
remains from the place of interment; and
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(d) if the human remains are body parts, may
remove those body parts from the place of
interment.
Victorian Legislation and Parliamentary Documents
(2) A holder of a right of interment for interring
5 human remains in a public grave--
(a) may inter human remains in a public grave in
the cemetery; and
(b) may place or alter a memorial on the public
grave.
10 (3) The holder of a right of interment must obtain the
approval of the cemetery trust before exercising
any of the powers referred to in sub-section (1) or
(2).
(4) On the application of a holder of a right of
15 interment to exercise any of the powers referred to
in sub-section (1)(c) or (d), the cemetery trust
may--
(a) authorise the exercise of that power; and
(b) impose such terms and conditions on the
20 exercise of that power as the cemetery trust
thinks fit.
78. Exercising a right of interment
(1) A right of interment is exercised if, in accordance
with this Act--
25 (a) human remains are interred at the place of
interment to which the right of interment
applies; or
(b) the holder of the right of interment creates a
memorial at that place of interment.
30 (2) If a right of interment is held by more than one
person, it may be exercised jointly and severally.
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Part 6--Rights of Interment in a Public Cemetery
s. 79
Division 2--Transfer and Surrender
79. Can a right of interment be transferred to another
Victorian Legislation and Parliamentary Documents
person?
(1) Subject to this Part, a right of interment may be
5 transferred to another person.
(2) If a person is the sole holder of a right of
interment, the person may transfer that right of
interment for consideration which does not exceed
the current cemetery trust fee payable for the same
10 type of right of interment in the public cemetery
for which that cemetery trust is responsible, less
the cemetery trust fee for the recording by the
cemetery trust of the transfer of that right of
interment.
15 80. Transfer of right of interment must be recorded
(1) A person to whom a right of interment is
transferred must--
(a) notify in writing the cemetery trust which is
responsible for the public cemetery to which
20 the right of interment applies of that transfer;
and
(b) pay the relevant cemetery trust fee for the
recording by the cemetery trust of the
transfer of that right of interment.
25 (2) The transfer of a right of interment is not effective
and the right of interment cannot be exercised by
the new holder of the right of interment until the
transfer is recorded by the cemetery trust.
81. Offence to receive certain consideration for right of
30 interment
A person must not receive any consideration for
or in connection with the transfer or use of a right
of interment except--
(a) in accordance with section 79(2); or
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s. 82
(b) as a refund from a cemetery trust under this
Act.
Victorian Legislation and Parliamentary Documents
Penalty: 240 penalty units or 2 years
imprisonment or both.
5 82. Surrender to cemetery trust of unexercised right of
interment by sole holder
(1) The holder of an unexercised right of interment
who is the sole holder of that right of interment
may surrender the right of interment to the
10 cemetery trust which granted it.
(2) On the surrender of a right of interment to a
cemetery trust under sub-section (1)--
(a) the cemetery trust must pay to the holder a
refund based on the current cemetery trust
15 fee payable for the same type of right of
interment less the relevant cemetery trust fee
for administration; and
(b) the person surrendering the right of
interment has no further entitlements or
20 responsibilities under that right of interment.
83. Surrender to cemetery trust of exercised right of
interment by sole holder
(1) The holder of an exercised right of interment who
is the sole holder of that right of interment may
25 surrender the right of interment to the cemetery
trust which granted it.
(2) On the surrender of a right of interment to a
cemetery trust under sub-section (1)--
(a) no refund is payable; and
30 (b) the person surrendering the right of
interment has no further entitlements or
responsibilities under that right of interment.
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(3) If a right of interment is surrendered to a cemetery
trust under this section, the cemetery trust may--
Victorian Legislation and Parliamentary Documents
(a) remove any memorial on the place of
interment to which the surrendered right of
5 interment applied; and
(b) grant a right of interment for interring human
remains in a public grave to the place of
interment to which the surrendered right of
interment applied.
10 84. Surrender to cemetery trust of right of interment--
more than one holder
(1) The holder of a right of interment who is not the
sole holder of that right of interment may
surrender that person's entitlement in the right of
15 interment by notifying the cemetery trust in
writing.
(2) On the surrender of an entitlement in a right of
interment under sub-section (1)--
(a) no refund is payable by the cemetery trust to
20 the person surrendering the entitlement in the
right of interment; and
(b) the person surrendering the entitlement in the
right of interment has no further entitlements
or responsibilities under that right of
25 interment.
Division 3--Conversion of Limited Rights of Interment
85. Cemetery trust to offer to convert 25 year limited
right of interment
(1) At least 12 months before the expiry of a right of
30 interment for interring cremated human remains
for 25 years, the cemetery trust responsible for the
public cemetery to which the right of interment
applies must take reasonable steps to notify the
holder of that right of interment that the right of
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interment will expire at the end of 25 years after it
was granted.
Victorian Legislation and Parliamentary Documents
(2) A notification under sub-section (1) must advise
the holder of the right of interment that--
5 (a) under section 87, the holder may request the
cemetery trust to--
(i) extend the right of interment for a
further 25 years; or
(ii) convert the right of interment to a
10 perpetual right of interment; and
(b) if the right of interment is not extended or
converted to a perpetual right of interment,
the cemetery trust may--
(i) remove interred cremated human
15 remains from their current place of
interment; and
(ii) dispose of those cremated human
remains within the cemetery grounds;
and
20 (iii) remove any memorial relating to those
cremated human remains.
(3) A notification under sub-section (1) must be in
writing.
86. Cemetery trust may remove cremated human
25 remains and memorial
If a cemetery trust has given notification under
section 85 and no action has been taken by the
holder of the right of interment within the time
limits specified by the cemetery trust, the
30 cemetery trust may--
(a) remove the interred cremated human remains
from their current place of interment; and
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(b) dispose of those cremated human remains
within the cemetery grounds; and
Victorian Legislation and Parliamentary Documents
(c) remove any memorial relating to those
cremated human remains.
5 87. Conversion or extension of a 25 year limited right of
interment
(1) The holder of a right of interment for interring
cremated human remains for 25 years may request
the cemetery trust to--
10 (a) extend the right of interment for a further 25
years; or
(b) convert the right of interment to a perpetual
right of interment.
(2) A request under sub-section (1)--
15 (a) must be in writing; and
(b) may be made at any time before the expiry
date of the right of interment; and
(c) must be accompanied by the relevant
cemetery trust fee.
20 (3) On receiving a request under sub-section (1), the
cemetery trust must--
(a) extend the right of interment for a further 25
years, if the request is a request referred to in
sub-section (1)(a); or
25 (b) convert the right of interment to a perpetual
right of interment, if the request is a request
referred to in sub-section (1)(b).
(4) A right of interment extended or converted under
this section applies to the same place of interment
30 as the original right of interment.
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Division 4--Lift and Re-position Procedure
88. Application to carry out lift and re-position
Victorian Legislation and Parliamentary Documents
procedure
(1) For the purposes of the re-use of a place of
5 interment by the holder of a right of interment, the
holder of the right of interment may apply to the
cemetery trust responsible for the public cemetery
to which that right of interment applies for
approval to carry out a lift and re-position
10 procedure at the place of interment to which the
right of interment applies.
(2) An application under sub-section (1) must--
(a) be in writing; and
(b) be accompanied by the relevant cemetery
15 trust fee.
89. Cemetery trust may approve or refuse application
(1) On receiving an application under section 88, a
cemetery trust, in accordance with this section,
may--
20 (a) approve the carrying out of a lift and re-
position procedure; or
(b) refuse to approve the carrying out of a lift
and re-position procedure.
(2) A cemetery trust must not approve the carrying
25 out of a lift and re-position procedure if it
considers that the lift and re-position procedure
would be inappropriate for any of the following
reasons--
(a) in the case of an interment in the ground, the
30 nature of the soil prevents or hinders the
carrying out of a lift and re-position
procedure; or
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(b) a lift and re-position procedure would be
impractical or impossible because the place
of interment cannot be sufficiently deepened;
Victorian Legislation and Parliamentary Documents
or
5 (c) the physical state of the human remains in
the place of interment; or
(d) in the case of a mausoleum, the chamber is
not able to accommodate additional human
remains; or
10 (e) religious, cultural, health or safety
considerations.
(3) If the existing human remains interred in a place
of interment are bodily remains, a cemetery trust
must not approve the carrying out of a lift and re-
15 position procedure unless those remains have been
interred in that place of interment for least 10
years.
(4) An approval under this section must be in writing.
90. Approval to carry out lift and re-position procedure
20 without exhumation licence
(1) A cemetery trust which has approved an
application for a lift and re-position procedure
may authorise a person, without an exhumation
licence--
25 (a) to open a place of interment; and
(b) to lift any existing human remains which are
interred in the place of interment; and
(c) to deepen or enlarge the place of interment if
necessary; and
30 (d) to reposition the existing human remains in
the place of interment, whether contained in
a receptacle or not, so as to provide space for
further interments in that place of interment.
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(2) Without limiting the manner in which a lift and re-
position procedure is carried out, for the purposes
of sub-section (1)(d), a person may remove human
Victorian Legislation and Parliamentary Documents
remains from any receptacle and place them in
5 another receptacle.
Division 5--Cancellation and Discontinuance
91. When can a cemetery trust cancel a right of
interment?
(1) A cemetery trust may cancel a right of interment
10 in a public cemetery for which it is responsible
if--
(a) the right of interment has never been
exercised; and
(b) the holder of the right of interment cannot be
15 found after diligent inquiries.
(2) A cemetery trust must not cancel a right of
interment referred to in sub-section (1) until the
end of at least 25 years after the original grant of
the right of interment.
20 (3) At least 14 days before cancelling a right of
interment, a cemetery trust must publish notice of
its intention to do so in a daily or weekly
newspaper circulating generally in the area in
which the public cemetery to which the right of
25 interment applies is located.
92. What happens if a right of interment is cancelled?
If a cemetery trust cancels a right of interment in
accordance with section 91, the cemetery trust, on
the request of a person who can establish to the
30 satisfaction of the cemetery trust that he or she
was the previous holder of that right of interment,
may--
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(a) pay to that person a refund based on the
current cemetery trust fee payable for the
same type of right of interment less the
Victorian Legislation and Parliamentary Documents
relevant cemetery trust fee for
5 administration; or
(b) grant to that person a right of interment in
respect of another place of interment at the
cemetery to be determined by the cemetery
trust on the payment of the relevant cemetery
10 trust fee fixed for the purposes of this
paragraph.
93. Order discontinuing granting rights of interment
(1) On the recommendation of the Minister, the
Governor in Council, by order published in the
15 Government Gazette, may direct a cemetery trust
to discontinue the granting of rights of interment
in a public cemetery for which the cemetery trust
is responsible.
(2) An order under sub-section (1) may--
20 (a) provide for discontinuing the granting of
rights of interment in the whole of a public
cemetery or specified parts of a public
cemetery;
(b) be subject to any exceptions, exemptions or
25 qualifications in respect of discontinuing the
granting of rights of interment as are
specified in the order.
94. Effect of order discontinuing granting rights of
interment
30 On the making of an order under section 93--
(a) a cemetery trust must not grant any new
rights of interment in respect of the area of
the public cemetery to which the order
applies; and
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(b) no further interments are permitted in the
area of the public cemetery to which the
order applies, unless the interment is
Victorian Legislation and Parliamentary Documents
pursuant to--
5 (i) a right of interment which was granted
before the making of the order; or
(ii) an exception, exemption or
qualification specified in the relevant
order.
__________________
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Act No.
Part 7--Memorials, Places of Interment and Buildings for Ceremonies
s. 95
PART 7--MEMORIALS, PLACES OF INTERMENT AND
BUILDINGS FOR CEREMONIES
Victorian Legislation and Parliamentary Documents
Division 1--Memorials and Places of Interment
95. Offence to desecrate memorials
5 (1) Except in accordance with this Act, a person must
not wilfully break open, damage, desecrate or
destroy a memorial.
Penalty: 240 penalty units or 2 years
imprisonment or both.
10 (2) Nothing in this section prevents a cemetery trust
from carrying out any function under this Act.
96. Offence to desecrate places of interment
(1) Except in accordance with this Act, a person must
not wilfully break open, damage, desecrate or
15 destroy a place of interment.
Penalty: 240 penalty units or 2 years
imprisonment or both.
(2) Nothing in this section prevents a cemetery trust
from carrying out any function under this Act.
20 Division 2--Cemetery Trust Approvals
97. Definition of "place of interment" limited
In this Division and Division 3, "place of
interment" does not include a grave or a plot for
the interment of human remains unless otherwise
25 stated.
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98. Application for establishment or alteration of
memorials and places of interment
Victorian Legislation and Parliamentary Documents
(1) A person may apply to the cemetery trust
responsible for the management of a public
5 cemetery for approval to establish or alter--
(a) a memorial; or
(b) a place of interment in the cemetery.
(2) An application must be accompanied by--
(a) the relevant cemetery trust fee; and
10 (b) a plan or design of the memorial or place of
interment proposed to be established or
altered; and
(c) if the application relates to a memorial or
place of interment for which there is a right
15 of interment, the written consent of the
holder of the right of interment.
99. Cemetery trust may approve or refuse the
application
(1) After considering an application made under
20 section 98, a cemetery trust--
(a) may approve the application; or
(b) may refuse the application if it is satisfied
that--
(i) the memorial or place of interment
25 would be unsafe, dangerous or not of a
sufficiently permanent nature; or
(ii) the establishment or alteration of the
memorial or place of interment would
be incompatible with the general nature
30 and standard of surrounding memorials
or places of interment or would not be
sufficiently in keeping with the nature
and character of the public cemetery; or
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(iii) the establishment or alteration of the
memorial or place of interment would
not comply with the model rules or the
Victorian Legislation and Parliamentary Documents
cemetery trust rules (if any); or
5 (iv) the establishment or alteration of the
memorial or place of interment does not
comply with the prescribed
requirements; or
(c) may refuse the application for any other
10 reason that the cemetery trust thinks fit.
(2) An approval under this section may be granted
subject to--
(a) a condition that the memorial or place of
interment be erected or placed in the position
15 determined by the cemetery trust; and
(b) any other terms and conditions which the
cemetery trust thinks fit.
(3) A cemetery trust may cancel an approval under
this section if the terms and conditions of the
20 approval have not been complied with.
(4) A cemetery trust must make a decision on an
application made under section 98--
(a) within 45 days after the receipt of the
application, if sufficient information has
25 been provided with the application; or
(b) if the cemetery trust has requested further
information because sufficient information
was not provided with the application, within
45 days after the cemetery trust has received
30 the further information.
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100. Cemetery trust may remove memorials or places of
interment
Victorian Legislation and Parliamentary Documents
(1) A cemetery trust may require a person to remove
or alter a memorial or place of interment in a
5 public cemetery if that person--
(a) has established or altered, or caused to be
established or altered, the memorial or place
of interment in the public cemetery without
the approval of the cemetery trust under
10 section 99; or
(b) has failed to comply with any term or
condition to which the approval of the
cemetery trust under section 99 was subject.
(2) If a person to whom sub-section (1) applies fails
15 or refuses to remove or alter the memorial or place
of interment, the cemetery trust may--
(a) remove the memorial or place of interment
and dispose of it as it sees fit; or
(b) remedy the failure to comply.
20 (3) A cemetery trust may recover the costs of taking
action under sub-section (2) from the person
referred to in sub-section (1) as a debt recoverable
in a court of competent jurisdiction.
101. Approval for establishment or alteration of a
25 building for ceremonies
(1) A person who is a member or representative of
any faith, religion or cultural group may apply to
the cemetery trust responsible for the management
of a public cemetery for approval to establish or
30 alter a building for ceremonies in the public
cemetery.
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(2) An application must be accompanied by--
(a) the relevant cemetery trust fee; and
Victorian Legislation and Parliamentary Documents
(b) a plan or design of the building for
ceremonies proposed to be established or
5 altered.
102. Cemetery trust may approve or refuse the
application
(1) After considering an application made under
section 101, a cemetery trust--
10 (a) may approve the application; or
(b) may refuse the application if it is satisfied
that--
(i) the building for ceremonies would be
unsafe, dangerous or not of a
15 sufficiently permanent nature; or
(ii) the establishment or alteration of the
building for ceremonies would be
incompatible with the general nature
and standard of surrounding structures,
20 memorials or places of interment or
would not be sufficiently in keeping
with the nature and character of the
public cemetery; or
(iii) the establishment or alteration of the
25 building for ceremonies would not
comply with the model rules or the
cemetery trust rules (if any); or
(iv) the establishment or alteration of the
building for ceremonies does not
30 comply with the prescribed
requirements; or
(c) may refuse the application for any other
reason that the cemetery trust thinks fit.
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(2) An approval under this section may be granted
subject to--
Victorian Legislation and Parliamentary Documents
(a) a condition that the building for ceremonies
be erected or placed in the position
5 determined by the cemetery trust; and
(b) any other terms and conditions which the
cemetery trust thinks fit.
(3) A cemetery trust may cancel an approval under
this section if the terms and conditions of the
10 approval have not been complied with.
103. Cemetery trust may remove building for ceremonies
(1) A cemetery trust may require a person to remove
or alter a building for ceremonies in a public
cemetery if that person--
15 (a) has established or altered, or caused to be
established or altered, the building for
ceremonies without the approval of the
cemetery trust under section 102; or
(b) has failed to comply with any term or
20 condition to which the approval of the
cemetery trust under section 102 was subject.
(2) If a person to whom sub-section (1) applies fails
or refuses to remove or alter the building for
ceremonies, the cemetery trust may--
25 (a) remove the building for ceremonies and
dispose of it as it sees fit; or
(b) remedy the failure to comply.
(3) A cemetery trust may recover the costs of taking
action under sub-section (2) from the person
30 referred to in sub-section (1) as a debt recoverable
in a court of competent jurisdiction.
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Division 3--Maintenance of Memorials, Places of Interment
and Buildings for Ceremonies
Victorian Legislation and Parliamentary Documents
104. Duty to maintain memorial or place of interment or
buildings for ceremonies
5 (1) The holder of a right of interment in respect of a
place of interment within the meaning of section 3
in a public cemetery must maintain or cause to be
maintained any memorial at that place of
interment in a safe and proper condition.
10 (2) The holder of a right of interment in respect of
a place of interment within the meaning of
section 97 in a public cemetery must maintain or
cause to be maintained that place of interment in a
safe and proper condition.
15 (3) A person responsible for the establishment or
alteration of a building for ceremonies approved
under Division 2 in a public cemetery must
maintain or cause to be maintained that building
for ceremonies in a safe and proper condition.
20 105. What is meant by a safe and proper condition?
Without limiting this Part--
(a) a memorial or place of interment is not in a
safe and proper condition if--
(i) it is in a state likely to cause physical
25 danger to any person; or
(ii) noxious fumes are escaping from that
memorial or place of interment; and
(b) a building for ceremonies is not in a safe and
proper condition if it is in a state likely to
30 cause physical danger to any person.
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106. Powers of a cemetery trust--memorials and places
of interment
Victorian Legislation and Parliamentary Documents
(1) If a cemetery trust believes that a memorial or
place of interment is not in a safe and proper
5 condition, the cemetery trust, by notice in writing,
may require the holder of the right of interment in
respect of that memorial or place of interment--
(a) to make the condition of the memorial or
place of interment safe and proper; or
10 (b) to carry out the repairs specified in the
notice.
(2) Before giving a notice under sub-section (1) in
respect of a place of interment, a cemetery trust
may require the holder of the right of interment to
15 open the place of interment for examination.
(3) If the holder of the right of interment fails to open
the place of interment when required under sub-
section (2), the cemetery trust may open and
examine the place of interment.
20 (4) If the holder of the right of interment fails to
comply with the notice under sub-section (1)
within 14 days of its receipt, the cemetery trust
may--
(a) repair the memorial or place of interment to
25 which the notice relates; or
(b) with the consent of the Secretary, take down,
remove and dispose of any memorial or
place of interment.
107. Powers of a cemetery trust--buildings for
30 ceremonies
(1) If a cemetery trust believes that a building for
ceremonies is not in a safe and proper condition,
the cemetery trust, by notice in writing, may
require the person responsible for the
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establishment or alteration of that building for
ceremonies--
Victorian Legislation and Parliamentary Documents
(a) to make the condition of the building for
ceremonies safe and proper; or
5 (b) to carry out the repairs specified in the
notice.
(2) If the person responsible for the establishment or
alteration of that building for ceremonies fails to
comply with the notice under sub-section (1)
10 within 14 days of its receipt, the cemetery trust
may--
(a) repair the building for ceremonies to which
the notice relates; or
(b) with the consent of the Secretary, take down,
15 remove and dispose of the building for
ceremonies.
108. Recovery of costs and expenses
A cemetery trust may recover from the holder of
the right of interment in respect of a memorial or a
20 place of interment or the person responsible for
the establishment or alteration of a building for
ceremonies (as the case requires) the costs and
expenses of--
(a) opening and examining a place of interment;
25 (b) repairing a memorial, place of interment or
building for ceremonies;
(c) taking down and removing any memorial,
place of interment or building for
ceremonies--
30 as a debt recoverable in a court of competent
jurisdiction.
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109. What if the holder of right of interment or
responsible person cannot be found?
Victorian Legislation and Parliamentary Documents
(1) If the cemetery trust believes that a memorial or
place of interment is not in a safe and proper
5 condition and the cemetery trust is unable to find
the holder of the right of interment for that
memorial or place of interment, the cemetery trust
may--
(a) in the case of a place of interment--
10 (i) open and examine the place of
interment; and
(ii) repair the place of interment; or
(b) in the case of a memorial--
(i) repair the memorial; or
15 (ii) with the consent of the Secretary, take
down, remove and dispose of the
memorial.
(2) If the cemetery trust believes that a building for
ceremonies is not in a safe and proper condition
20 and the cemetery trust is unable to find the person
responsible for that building for ceremonies, the
cemetery trust may--
(a) repair the building for ceremonies; or
(b) with the consent of the Secretary, take down,
25 remove and dispose of the building for
ceremonies.
110. Cemetery trust may repair or maintain from other
funds
(1) If a cemetery trust is unable to find the holder of
30 the right of interment for any memorial or place of
interment, the cemetery trust may maintain, repair
or restore any memorial or place of interment if
the cemetery trust--
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(a) obtains the consent of the Secretary to the
maintenance, repair or restoration; and
Victorian Legislation and Parliamentary Documents
(b) uses funds other than cemetery trust funds
for the maintenance, repair or restoration.
5 (2) If a cemetery trust is unable to find the person
responsible for a building for ceremonies, the
cemetery trust may maintain, repair or restore any
building for ceremonies if the cemetery trust--
(a) obtains the consent of the Secretary to the
10 maintenance, repair or restoration; and
(b) uses funds other than cemetery trust funds
for the maintenance, repair or restoration.
111. Cemetery trust may enter agreements to maintain
memorials and places of interment
15 (1) A cemetery trust may enter into an agreement
with a holder of a right of interment in the public
cemetery for which the cemetery trust is
responsible to maintain a memorial or place of
interment which the holder of the right of
20 interment would otherwise be responsible to
maintain.
(2) An agreement under sub-section (1)--
(a) must be for a limited term not exceeding 10
years; and
25 (b) may be renewed for a further term not
exceeding 10 years.
112. Cemetery trust may sell and supply memorials
A cemetery trust may sell and supply memorials.
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Part 8--Interment of Bodily Remains
s. 113
PART 8--INTERMENT OF BODILY REMAINS
Victorian Legislation and Parliamentary Documents
Division 1--Interment Generally
113. Bodily remains interred for perpetuity
Subject to this Act, bodily remains interred in a
5 public cemetery are interred for perpetuity.
114. Unlawful interment
A person must not inter bodily remains in a place
other than a public cemetery unless the Secretary
has granted an interment approval for that
10 interment.
Penalty: 600 penalty units or 5 years
imprisonment or both.
115. Offence to inter bodily remains in public cemetery
without interment authorisation
15 A person must not inter bodily remains in a public
cemetery unless the cemetery trust responsible for
that public cemetery has granted an interment
authorisation for that interment.
Penalty: 600 penalty units or 5 years
20 imprisonment or both.
Division 2--Interment Authorisations
116. Application for interment authorisation
(1) A person who wishes bodily remains to be
interred in a public cemetery may apply to the
25 cemetery trust responsible for that public
cemetery for an interment authorisation.
(2) An application for an interment authorisation must
be in the prescribed form.
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(3) An application for an interment authorisation must
be accompanied by one of the following--
Victorian Legislation and Parliamentary Documents
(a) a notice under section 37(2) of the Births,
Deaths and Marriages Registration Act
5 1996; or
(b) a certificate in the form prescribed under
section 23 of the Coroners Act 1985; or
(c) if the deceased died in another State or
Territory of the Commonwealth or overseas,
10 a document corresponding to a notice under
section 37(2) of the Births, Deaths and
Marriages Registration Act 1996 from the
jurisdiction where the deceased died; or
(d) if the interment authorisation is for a still-
15 born child--
(i) a notice of still-birth under the Births,
Deaths and Marriages Registration
Act 1996; or
(ii) if the still-birth occurred in another
20 State or Territory of the
Commonwealth or overseas, a
document corresponding to a notice of
still-birth under the Births, Deaths and
Marriages Registration Act 1996
25 from the jurisdiction where the still-
birth occurred; or
(e) a statutory declaration made by the person
arranging the interment stating that, owing to
special circumstances, it is not possible to
30 produce the required documents referred to
in paragraphs (a), (c) or (d) (as the case
requires).
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(4) If a cemetery trust grants an interment
authorisation where the application for the
interment authorisation was accompanied by a
Victorian Legislation and Parliamentary Documents
statutory declaration referred to in sub-section
5 (3)(e), the cemetery trust must notify the Secretary
in writing of that fact.
(5) If an application for an interment authorisation
relates to a place of interment for which a right of
interment exists, the cemetery trust may require
10 the applicant to produce evidence to the
satisfaction of the trust that the holder of the right
of interment has consented to the application.
117. Offence to make false statement in application for
interment authorisation
15 A person must not make a false statement in an
application for an interment authorisation.
Penalty: 240 penalty units or 2 years
imprisonment or both.
118. Grant of interment authorisation
20 A cemetery trust must not grant an interment
authorisation unless the cemetery trust is satisfied
that the requirements of this Division have been
met in relation to the application for the interment
authorisation.
25 119. Conditions on interment authorisation
An interment authorisation may be granted on
such conditions as the cemetery trust thinks fit.
120. Offence to fail to comply with interment
authorisation
30 A person to whom an interment authorisation is
granted must not fail to comply with any
condition of that interment authorisation.
Penalty: 120 penalty units or 12 months
imprisonment or both.
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Division 3--Interment Approvals
121. Application for interment approval for interment
Victorian Legislation and Parliamentary Documents
other than in a public cemetery
(1) A person who wishes bodily remains to be
5 interred in a place other than a public cemetery
may apply to the Secretary for an interment
approval.
(2) An application for an interment approval must
be--
10 (a) in the prescribed form; and
(b) accompanied by the prescribed fee.
(3) An application for an interment approval must be
accompanied by one of the following--
(a) a notice under section 37(2) of the Births,
15 Deaths and Marriages Registration Act
1996; or
(b) a certificate in the form prescribed under
section 23 of the Coroners Act 1985; or
(c) if the deceased died in another State or
20 Territory of the Commonwealth or overseas,
a document corresponding to a notice under
section 37(2) of the Births, Deaths and
Marriages Registration Act 1996 from the
jurisdiction where the deceased died; or
25 (d) if the interment approval is for a still-born
child--
(i) a notice of still-birth under the Births,
Deaths and Marriages Registration
Act 1996; or
30 (ii) if the still-birth occurred in another
State or Territory of the
Commonwealth or overseas, a
document corresponding to a notice of
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still-birth under the Births, Deaths and
Marriages Registration Act 1996
from the jurisdiction where the still-
Victorian Legislation and Parliamentary Documents
birth occurred; or
5 (e) a statutory declaration made by the person
arranging the interment stating that, owing to
special circumstances, it is not possible to
produce the required documents referred to
in paragraphs (a), (c) or (d) (as the case
10 requires).
122. Offence to make false statement in application for
interment approval
A person must not make a false statement in an
application for an interment approval.
15 Penalty: 240 penalty units or 2 years
imprisonment or both.
123. Grant of interment approval
(1) The Secretary must not grant an interment
approval unless the Secretary is satisfied that the
20 requirements of this Division have been met in
relation to the application for the interment
approval.
(2) An interment approval must--
(a) be in writing; and
25 (b) be signed by the Secretary.
124. Conditions on interment approval
(1) An interment approval may be granted on such
conditions as the Secretary thinks fit.
(2) Without limiting sub-section (1), the conditions on
30 an interment approval may include conditions
relating to--
(a) the minimum size of the land on which the
interment is to take place; and
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(b) the depth of the interment; and
(c) the standards of construction for any
Victorian Legislation and Parliamentary Documents
monument or vault on the land on which the
interment is to take place.
5 125. Offence to fail to comply with interment approval
A person to whom an interment approval is
granted must not fail to comply with any
condition of that interment approval.
Penalty: 120 penalty units or 12 months
10 imprisonment or both.
126. Notice of interment approval to Registrar of Titles
(1) The Secretary must lodge with the Registrar of
Titles notice of any interment approval if that
interment approval affects land other than Crown
15 land.
(2) On receipt of a notice of an interment approval
under this section, the Registrar of Titles must
make any recordings in the Register that are
necessary or convenient for the purpose of
20 bringing the notice of the interment approval to
the attention of persons who search the folios of
the Register to which the notice relates.
(3) The Registrar of Titles may require any evidence
of the identity of any land affected by a notice of
25 an interment approval lodged under this section
that he or she thinks fit.
127. Secretary to notify Registrar of Titles to remove
notice
(1) The Secretary may lodge with the Registrar of
30 Titles a notice requesting the removal of any
notice of interment approval recorded under
section 126.
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(2) On receipt of a notice under this section
requesting the removal of a notice of an interment
approval, the Registrar of Titles must make any
Victorian Legislation and Parliamentary Documents
recordings in the Register that are necessary or
5 convenient for the purpose of removing the notice
of the interment approval from the folios of the
Register to which the notice of an interment
approval relates.
(3) The Registrar of Titles may require any evidence
10 of the identity of any land affected by a notice
lodged under this section requesting the removal
of a notice of an interment approval that he or she
thinks fit.
__________________
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s. 128
PART 9--CREMATION
Victorian Legislation and Parliamentary Documents
Division 1--Cremation Generally
128. Interment of cremated human remains
Subject to this Act, cremated human remains--
5 (a) may be interred or disposed of in a public
cemetery, but are not required to be interred
or disposed of in a public cemetery; and
(b) if interred in a public cemetery may be
interred--
10 (i) for perpetuity; or
(ii) for a limited tenure not exceeding
25 years in accordance with a right of
interment.
129. Unlawful cremation
15 A person must not cremate bodily remains or
assist in the cremation of bodily remains at any
place other than--
(a) at a crematorium in a public cemetery; or
(b) in accordance with an approval of the
20 Secretary under section 136.
Penalty: 600 penalty units or 5 years
imprisonment or both.
130. Offence to cremate without cremation authorisation
A person must not cremate bodily remains or
25 assist in the cremation of bodily remains in a
crematorium in a public cemetery unless the
cemetery trust has granted a cremation
authorisation for the cremation.
Penalty: 600 penalty units or 5 years
30 imprisonment or both.
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Division 2--Cremation Authorisation
131. Application for cremation authorisation
Victorian Legislation and Parliamentary Documents
(1) A person who wishes bodily remains to be
cremated in a crematorium at a public cemetery
5 may apply to the cemetery trust responsible for
that public cemetery for a cremation authorisation.
(2) An application for a cremation authorisation must
be in the prescribed form.
(3) An application for a cremation authorisation must
10 be accompanied by any of the following--
(a) both--
(i) a certificate of a registered medical
practitioner authorising cremation in
the prescribed form; and
15 (ii) a notice as required under section 37(2)
of the Births, Deaths and Marriages
Registration Act 1996; or
(b) a certificate in the form prescribed under
section 23 of the Coroners Act 1985
20 certifying that cremation is permitted; or
(c) if the deceased person died in another State
or Territory of the Commonwealth or
overseas, an authority to cremate under the
hand of the Coroner or other person
25 permitted by the law of the jurisdiction
where the deceased died to authorise
cremation; or
(d) if the cremation authorisation is for a still-
born child--
30 (i) a notice of still-birth under the Births,
Deaths and Marriages Registration
Act 1996; or
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(ii) if the still-birth occurred in another
State or Territory of the
Commonwealth or overseas, a
Victorian Legislation and Parliamentary Documents
document corresponding to a notice of
5 still-birth under the Births, Deaths and
Marriages Registration Act 1996
from the jurisdiction where the still-
birth occurred; or
(e) a cremation approval.
10 132. Offence to make false statement in application for
cremation authorisation
A person must not make a false statement in an
application for a cremation authorisation.
Penalty: 600 penalty units or 5 years
15 imprisonment or both.
133. Grant of cremation authorisation
(1) A cemetery trust must not grant a cremation
authorisation unless the trust is satisfied that the
requirements of this Division have been met in
20 relation to that application.
(2) If section 139 applies, a cemetery trust must not
grant a cremation authorisation without a
certificate in the form prescribed under section 23
of the Coroners Act 1985 certifying that
25 cremation is permitted.
Division 3--Approvals by Secretary
134. Secretary may grant cremation approval
(1) The Secretary may grant an approval for the
cremation of bodily remains at a crematorium in a
30 public cemetery if the requirements of section
131(3)(a) to (d) cannot be met due to special
circumstances.
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(2) A cremation approval must--
(a) be in writing; and
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(b) be signed by the Secretary.
135. Application for approval to cremate in a place other
5 than a crematorium in a public cemetery
(1) A person who wishes bodily remains to be
cremated at a place other than a crematorium in a
public cemetery may apply to the Secretary for an
approval to cremate bodily remains in a place
10 other than a crematorium in a public cemetery.
(2) Subject to section 136(2), an application for an
approval to cremate bodily remains at a place
other than a crematorium in a public cemetery
must be accompanied by any of the following--
15 (a) both--
(i) a certificate of a registered medical
practitioner authorising cremation in
the prescribed form; and
(ii) a notice as required under section 37(2)
20 of the Births, Deaths and Marriages
Registration Act 1996; or
(b) a certificate in the form prescribed under
section 23 of the Coroners Act 1985
certifying that cremation is permitted; or
25 (c) if the deceased person died in another State
or Territory of the Commonwealth or
overseas, an authority to cremate under the
hand of the Coroner or other person
permitted by the law of the jurisdiction
30 where the deceased died to authorise
cremation; or
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(d) if the cremation authorisation is for a still-
born child--
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(i) a notice of still-birth under the Births,
Deaths and Marriages Registration
5 Act 1996; or
(ii) if the still-birth occurred in another
State or Territory of the
Commonwealth or overseas, a
document corresponding to a notice of
10 still-birth under the Births, Deaths and
Marriages Registration Act 1996
from the jurisdiction where the still-
birth occurred.
136. Approval by Secretary
15 (1) The Secretary may grant an approval to cremate
bodily remains at a place other than a
crematorium in a public cemetery.
(2) The Secretary may grant an approval under this
section without the application under section 135
20 being accompanied by the relevant documents
referred to in section 135(2) if the Secretary is
satisfied that, owing to special circumstances, it is
not possible to produce any of those documents.
(3) An approval under this section must--
25 (a) be in writing; and
(b) be signed by the Secretary.
137. Offence to make false statement in application to
Secretary
A person must not make a false statement in an
30 application for--
(a) a cremation approval; or
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(b) an approval to cremate bodily remains at a
place other than a crematorium in a public
cemetery.
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Penalty: 600 penalty units or 5 years
5 imprisonment or both.
138. Who can sign certificate of a registered medical
practitioner authorising cremation?
For the purposes of this Part, a certificate of a
registered medical practitioner authorising
10 cremation must be signed by a registered medical
practitioner who is not the registered medical
practitioner who signed the notice as required
under section 37(2) of the Births, Deaths and
Marriages Registration Act 1996 in respect of
15 the death of the deceased person who is to be
cremated.
139. Refusal to sign certificate of registered medical
practitioner authorising cremation
If a registered medical practitioner refuses to sign
20 a certificate of a registered medical practitioner
authorising cremation, he or she must clearly
endorse that fact on the certificate.
140. Offence to make false statement in certificate of
registered medical practitioner authorising
25 cremation
A person must not make a false statement in a
certificate of a registered medical practitioner
authorising cremation.
Penalty: 600 penalty units or 5 years
30 imprisonment or both.
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141. Offence to inter cremated human remains in public
cemetery without authority
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A person must not inter cremated human remains
or assist in the interment of cremated human
5 remains in a public cemetery unless the cemetery
trust has authorised the interment under this Act.
Penalty: 20 penalty units.
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Part 10--Interment and Cremation of Deceased Poor Persons
s. 142
PART 10--INTERMENT AND CREMATION OF DECEASED
POOR PERSONS
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142. Prescribed person may apply for order
A prescribed person may apply to the Magistrates'
5 Court for an order under this Part.
143. Magistrates' Court may make order
(1) The Magistrates' Court may make an order
requiring a cemetery trust--
(a) to either--
10 (i) cremate the bodily remains of a
deceased poor person and inter those
cremated human remains free of charge
in the public cemetery for which it is
responsible; or
15 (ii) to inter the bodily remains of a
deceased poor person free of charge in
the public cemetery for which it is
responsible; and
(b) to place a plaque on the place of interment of
20 the deceased poor person setting out the
name, date of birth and date of death of the
deceased poor person (if known) if it appears
that the relatives or friends of that person are
unable to provide a plaque or other
25 memorial.
(2) The Magistrates' Court must not make an order
under this Part unless satisfied that--
(a) the deceased person died without sufficient
means to pay interment or cremation
30 expenses; and
(b) the deceased person's relatives and friends
are unable to pay the interment or cremation
expenses.
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144. Order to generally specify cremation
An order under this Part must include a direction
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requiring the cemetery trust to arrange for the
cremation of the bodily remains of the deceased
5 poor person unless the Magistrates' Court is
satisfied that--
(a) the wishes or religious beliefs of the
deceased poor person in relation to
cremation are unknown; or
10 (b) cremation was contrary to the wishes or
religious beliefs of the deceased poor person;
or
(c) it is not practicable for the bodily remains to
be cremated.
15 145. Trust must comply with order
A cemetery trust must comply with an order made
under this Part.
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Act No.
Part 11--Other Disposition of Human Remains
s. 146
PART 11--OTHER DISPOSITION OF HUMAN REMAINS
Victorian Legislation and Parliamentary Documents
Division 1--Disposal Other Than by Interment or
Cremation
146. Disposal by methods other than interment or
5 cremation
With the prior approval in writing of the
Secretary, a cemetery trust may dispose of bodily
remains by a method other than interment or
cremation in a public cemetery for which it is
10 responsible.
147. Secretary may grant approval
(1) On the application of a cemetery trust for approval
to dispose of bodily remains in a public cemetery
for which it is responsible, the Secretary may
15 approve the disposal by a method other than
interment or cremation.
(2) An approval under this section--
(a) is subject to any terms and conditions
specified in the approval which the Secretary
20 thinks fit; and
(b) may apply--
(i) generally; or
(ii) to a specific class of disposals; or
(iii) to a specific disposal.
25 (3) An approval under this section must be in writing.
148. Secretary may vary or revoke approval
(1) The Secretary may--
(a) revoke an approval granted under section
147;
30 (b) vary an approval granted under section 147;
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(c) vary any terms and conditions specified in
the approval granted under section 147.
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(2) A revocation or variation under this section must
be in writing.
5 149. Cemetery trust to cease using method if approval
revoked
If the Secretary revokes an approval granted under
section 147, the cemetery trust must cease using
the method of disposal to which that revoked
10 approval related.
Division 2--Interment or Cremation of Body Parts
150. Interment or cremation of body parts
A cemetery trust may authorise the interment or
cremation of body parts in a public cemetery for
15 which it is responsible.
151. Application for interment or cremation of body
parts
(1) A person who wishes body parts to be interred or
cremated in a public cemetery may apply to the
20 cemetery trust responsible for that public
cemetery for an authority under section 150.
(2) An application under sub-section (1) must contain
the prescribed information from a prescribed
person.
25 (3) For the purposes of sub-section (2), "prescribed
person" means--
(a) a registered medical practitioner who treated
the person to whom the body part belonged;
or
30 (b) a registered medical practitioner of the
hospital where the person to whom the body
part belonged was treated; or
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(c) the Coroner; or
(d) a person or class of person prescribed for the
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purposes of this section.
152. Grant of authorisation
5 (1) A cemetery trust must not grant an authorisation
under section 150 unless the cemetery trust is
satisfied that the requirements of this Division
have been met in relation to the application for the
authorisation.
10 (2) An authorisation under section 150 may be
granted on such terms and conditions as the
cemetery trust thinks fit.
153. Offence to inter body parts in public cemetery
without authority
15 A person must not inter body parts or assist in the
interment of body parts in a public cemetery
unless the cemetery trust has authorised the
interment under this Act.
Penalty: 20 penalty units.
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Part 12--Exhumation and Removal
s. 154
PART 12--EXHUMATION AND REMOVAL
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154. Part does not apply to exhumation under Coroners
Act
Nothing in this Part applies to an exhumation
5 conducted under the Coroners Act 1985.
155. Offence to exhume other than in accordance with
this Act
Except in accordance with this Act, a person must
not exhume or remove human remains from any
10 place of interment.
Penalty: 600 penalty units or 5 years
imprisonment or both.
156. Application to Secretary for exhumation licence
(1) A person may apply to the Secretary for an
15 exhumation licence to exhume or remove human
remains from any place of interment.
(2) An application for an exhumation licence--
(a) must be in the prescribed form; and
(b) must be lodged with the Secretary at least
20 7 days before the proposed exhumation or
removal; and
(c) must be accompanied by the prescribed fee.
157. Grant of exhumation licence
(1) After considering an application for an
25 exhumation licence, the Secretary may--
(a) grant the exhumation licence; or
(b) refuse to grant the exhumation licence.
(2) An exhumation licence may be granted subject to
such terms and conditions as the Secretary thinks
30 fit and as are specified in the exhumation licence.
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158. Exhumation licence required to move remains to
another location
Victorian Legislation and Parliamentary Documents
(1) If a person wishes to remove human remains from
a place of interment and re-inter those human
5 remains at another location, the person must
obtain an exhumation licence.
(2) An exhumation licence is required under sub-
section (1) whether or not the proposed re-
interment is--
10 (a) within the public cemetery where the human
remains are currently interred; or
(b) outside the public cemetery where the human
remains are currently interred.
(3) This section does not apply to the removal or re-
15 interment of cremated human remains or body
parts by--
(a) a cemetery trust in a public cemetery for
which it is responsible; or
(b) the holder of a right of interment in
20 accordance with this Act.
159. Offence to fail to comply with exhumation licence
A person who has been granted an exhumation
licence must comply with the terms and
conditions of the exhumation licence.
25 Penalty: 240 penalty units or 2 years
imprisonment or both.
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Part 13--Enforcement
s. 160
PART 13--ENFORCEMENT
Victorian Legislation and Parliamentary Documents
Division 1--Enforcement Powers
160. Appointment of authorised officers
(1) The Secretary, by instrument, may appoint as an
5 authorised officer any employee or employees or
class of employees employed under Part 3 of the
Public Sector Management and Employment
Act 1998.
(2) The Secretary is an authorised officer for the
10 purposes of this Act.
161. Identity card
(1) The Secretary must issue an identity card to each
authorised officer.
(2) An identity card must contain a photograph of the
15 authorised officer to whom it is issued.
162. Offence not to produce identity card
An authorised officer must produce his or her
identity card for inspection--
(a) before exercising a power under this Part;
20 and
(b) at any time during the exercise of the power
under this Part if asked to do so.
Penalty: 10 penalty units.
163. Powers of entry and inspection
25 (1) For the purposes of monitoring compliance with
this Act or the regulations by a cemetery trust in
relation to its functions and powers under this Act
or the regulations, an authorised officer, without a
warrant or consent and with such assistance as he
30 or she thinks necessary, may--
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(a) enter any place being used as a public
cemetery or a crematorium;
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(b) inspect and take copies of or take extracts
from any documents kept at the place;
5 (c) require a specified person at the place--
(i) to answer a question to the best of that
person's knowledge, information and
belief;
(ii) to take reasonable steps to produce
10 documents;
(d) test any equipment or facility at the place;
(e) seize any document or equipment at the
place, if the authorised officer believes on
reasonable grounds that the document or
15 equipment relates to a contravention of this
Act or the regulations.
(2) An authorised officer must not enter or search any
place under sub-section (1) unless, before that
entry or search, the authorised officer--
20 (a) has produced his or her identity card for
inspection; and
(b) has informed the occupier of the purpose of
the entry or search.
(3) An authorised officer may only exercise powers
25 under this section during normal business hours.
(4) If, under sub-section (1)(c), an authorised officer
requires a specified person to answer a question to
the best of that person's knowledge, information
and belief or to take reasonable steps to produce
30 documents, the authorised officer must advise the
person that it is a reasonable excuse for that
person to refuse to comply with the request if it
would tend to incriminate that person.
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(5) For the purposes of this section, "specified
person" means--
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(a) a member of a cemetery trust; and
(b) an employee of a cemetery trust or other
5 person referred to in section 17; and
(c) a volunteer engaged in volunteer work for
the cemetery trust.
164. Retention and return of seized documents or
equipment
10 (1) If an authorised officer seizes any document or
equipment under section 163, he or she must--
(a) give notice of the seizure to--
(i) the person apparently in charge of the
document or equipment; or
15 (ii) an occupier of the place; and
(b) return the document or equipment to that
person or the place within 2 business days
after seizing it, unless the document or
equipment is brought before the Magistrates'
20 Court within that period.
(2) Section 78 of the Magistrates' Court Act 1989
applies to any document or equipment brought
before the Magistrates' Court under this section as
if it were brought before that Court under that
25 section 78.
165. Search warrants
(1) An authorised officer or a member of the police
force may apply to a magistrate for the issue of a
search warrant in relation to a particular premises
30 or a place if the authorised officer or the member
of the police force believes on reasonable grounds
that an offence against this Act or the regulations
has been committed.
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(2) If a magistrate is satisfied, by the evidence on oath
or by affidavit of the authorised officer or the
member of the police force (as the case requires),
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that there are reasonable grounds for believing
5 that an offence against this Act or the regulations
has been committed, the magistrate may issue a
search warrant, in accordance with the
Magistrates' Court Act 1989, authorising an
authorised officer or a member of the police force
10 named in the warrant, together with any other
person or persons named or otherwise identified in
the warrant and with any necessary equipment--
(a) to enter the premises or place specified in the
warrant, if necessary by force; and
15 (b) to do all or any of the following--
(i) search for;
(ii) seize;
(iii) secure against interference;
(iv) examine and inspect;
20 (v) make copies of or take extracts from--
a thing or things of a particular kind named
or described in the warrant and which the
authorised officer or the member of the
police force believes, on reasonable grounds,
25 to be connected with the commission of an
offence against this Act or the regulations.
(3) A search warrant issued under this section must
state--
(a) the purpose for which the search is required;
30 and
(b) any conditions to which the warrant is
subject; and
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(c) whether entry is authorised to be made at any
time of the day or night or during stated
hours of the day or night; and
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(d) a day, not later than 28 days after the issue of
5 the warrant, on which the warrant ceases to
have effect.
(4) Except as provided by this Act, the rules to be
observed with respect to search warrants under the
Magistrates' Court Act 1989 extend and apply to
10 warrants under this section.
166. Announcement before entry
(1) On executing a search warrant, the person
executing it--
(a) must announce that he or she is authorised
15 by the warrant to enter the premises or place;
and
(b) if the authorised officer or the member of the
police force has been unable to obtain
unforced entry, must give any person at the
20 premises or place an opportunity to allow
entry to the premises or place.
(2) An authorised officer or a member of the police
force need not comply with sub-section (1) if he
or she believes on reasonable grounds that
25 immediate entry to the premises or place is
required to ensure--
(a) the safety of any person; or
(b) that the effective execution of the search
warrant is not frustrated.
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167. Details of warrant to be given to occupier
(1) If the occupier is present at premises or a place
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where a search warrant is being executed, the
person executing the warrant must--
5 (a) identify himself or herself to the occupier;
and
(b) give a copy of the warrant to the occupier.
(2) If the occupier is not present at the premises or a
place where a search warrant is being executed,
10 the person executing the warrant must--
(a) identify himself or herself to a person at the
premises or place; and
(b) give a copy of the warrant to the person.
168. Copies of seized documents
15 (1) If an authorised officer or a member of the police
force retains possession of a document taken or
seized from a person under a warrant, the
authorised officer or the member of the police
force (as the case requires) must give the person a
20 copy of the document certified as correct by the
authorised officer or the member of the police
force (as the case requires).
(2) A copy of a document certified under sub-section
(1) must be given within 21 days of the seizure.
25 (3) A copy of a document certified under sub-section
(1) is to be received in all courts and tribunals as
evidence of equal validity to the original.
169. Refusal or failure to comply with requirement
A person must not refuse or fail, without
30 reasonable excuse, to comply with a requirement
of an authorised officer under this Part.
Penalty: 60 penalty units.
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170. Offence to hinder or obstruct authorised officer
A person must not, without reasonable excuse,
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hinder or obstruct an authorised officer exercising
a power under this Part.
5 Penalty: 60 penalty units.
171. Offence to give false or misleading information
(1) A person must not give information to an
authorised officer under this Part that the person
believes to be false or misleading in any material
10 particular.
Penalty: 60 penalty units.
(2) A person must not produce a document to an
authorised officer under this Part that the person
knows to be false or misleading in a material
15 particular without indicating the respect in which
it is false or misleading and, if practicable,
providing correct information.
Penalty: 60 penalty units.
172. Protection against self-incrimination
20 It is a reasonable excuse for a natural person to
refuse to answer a question of an authorised
officer or give information or produce a document
to an authorised officer or do any other thing that
the person is required to do by or under this Part if
25 the answering of the question, giving of the
information, production of the document or the
doing of the thing would tend to incriminate the
person.
173. Offence to impersonate authorised officer
30 A person who is not an authorised officer must
not, in any way, hold himself or herself out to be
an authorised officer.
Penalty: 60 penalty units.
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174. Who may prosecute?
(1) Proceedings for an offence against this Act or the
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regulations may be taken by the Director of Public
Prosecutions, an authorised officer or a member of
5 the police force.
(2) Proceedings started under sub-section (1) may be
taken over and continued at any time by any other
person authorised by sub-section (1) to take
proceedings.
10 (3) All courts must take judicial notice of the fact that
any person purporting to be authorised by sub-
section (1) is authorised to take proceedings.
175. Extended period to prosecute certain offences
Despite section 26 of the Magistrates' Court Act
15 1989, proceedings for an offence against
section 81 may be commenced within the period
of 3 years after the commission of the alleged
offence.
Division 2--Offences
20 176. Offence to dispose of falsely identified bodily
remains
A person must not knowingly dispose of or
arrange for the disposal of falsely identified bodily
remains.
25 Penalty: 600 penalty units or 5 years
imprisonment or both.
177. Indictable offences
An offence under section 114, 115, 129, 130, 132,
137, 140, 155 or 176 is an indictable offence.
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178. Offences by bodies corporate
If a body corporate is guilty of an offence against
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this Act, any person who is concerned in or takes
part in the management of that body corporate
5 who knowingly authorised or permitted the
contravention is also guilty of that offence and
liable to the penalty for that offence.
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Part 14--General
s. 179
PART 14--GENERAL
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179. Review by VCAT
(1) A holder of a right of interment may apply to the
Victorian Civil and Administrative Tribunal
5 established by the Victorian Civil and
Administrative Tribunal Act 1998 for review of
a decision of a cemetery trust--
(a) to refuse to grant an approval to establish or
alter a memorial or a place of interment in
10 the cemetery; or
(b) to grant an approval to establish or alter a
memorial or a place of interment in the
cemetery subject to terms and conditions.
(2) An application for review must be made within
15 28 days after the later of--
(a) the day on which the decision is made; or
(b) if, under the Victorian Civil and
Administrative Tribunal Act 1998, the
person requests a statement of reasons for the
20 decision, the day on which the statement of
reasons is given to the person or the person is
informed under section 46(5) of that Act that
a statement of reasons will not be given.
180. Regulations and model rules
25 (1) The Governor in Council may make regulations
for or with respect to--
(a) prescribing model rules for or with respect to
the general care, protection and management
of public cemeteries and crematoria;
30 (b) fees for the purposes of this Act;
(c) forms for the purposes of this Act;
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(d) prescribing information for the purposes of
this Act;
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(e) the protection of public health and the
maintenance of public order in public
5 cemeteries and crematoria;
(f) the care, protection and management of
public cemeteries and crematoria;
(g) the interment or other disposition of human
remains in public cemeteries, including
10 disposition under Part 11;
(h) the structure, maintenance and management
of memorials, places of interment and
buildings for ceremonies in public
cemeteries;
15 (i) the cremation of any human remains in
crematoria and the disposition or interment
of cremated human remains;
(j) the standards, conduct, operation,
maintenance and management of crematoria;
20 (k) prescribing penalties not exceeding
20 penalty units for a contravention of the
regulations or the model rules;
(l) any other matter or thing that is required or
permitted by this Act to be prescribed or that
25 is necessary to be prescribed for carrying out
or giving effect to this Act.
(2) Regulations and the model rules made under this
Act--
(a) may be of general or limited application;
30 (b) may differ according to differences in time,
place or circumstance;
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(c) may leave any matter or thing to be from
time to time determined, approved or
dispensed with by the Secretary or a
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cemetery trust.
5 (d) may apply, adopt or incorporate any matter
contained in any document, code, standard,
rule, specification or method, formulated,
issued, prescribed or published by any other
person, whether--
10 (i) wholly or partially or as amended by
the regulations or model rules; or
(ii) as formulated, issued, prescribed or
published at the time the regulations or
model rules are made or at any time
15 before then; or
(iii) as formulated, issued, prescribed or
published from time to time.
(3) Regulations made under this Act may exempt
specified cemeteries or crematoria or any class of
20 cemeteries or crematoria from complying with all
or any of the regulations.
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s. 181
PART 15--REPEALS, TRANSITIONAL PROVISIONS AND
CONSEQUENTIAL AMENDMENTS
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181. Cemeteries Act 1958 repealed
The Cemeteries Act 1958 is repealed.
5 182. Section 32 of National Parks Act 1975 substituted
For section 32 of the National Parks Act 1975
substitute--
"32. Port Campbell National Park
Despite anything to the contrary in the
10 Cemeteries and Crematoria Act 2003--
(a) the Secretary is responsible for the
management of the Loch Ard Public
Cemetery and the Cape Otway Public
Cemetery; and
15 (b) in relation to each of those cemeteries,
the Secretary may exercise the
functions and powers of a cemetery
trust within the meaning of that Act;
and
20 (c) the provisions of that Act, so far as
applicable, apply to those cemeteries
with any necessary modifications.".
183. Amendment to the Summary Offences Act 1966
For clause 5 of Schedule 1 to the Summary
25 Offences Act 1966 substitute--
"5. Land held or managed by a cemetery trust of a public
cemetery to which the Cemeteries and Crematoria
Act 2003 applies.".
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184. Amendment to Magistrates' Court Act 1989
After item 40 of Schedule 4 to the Magistrates'
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Court Act 1989 insert--
"41. Unlawful interment
5 An offence under section 114 of the Cemeteries and
Crematoria Act 2003.
42. Offence to inter bodily remains in public
cemetery without interment authorisation
An offence under section 115 of the Cemeteries and
10 Crematoria Act 2003.
42A. Unlawful cremation
An offence under section 129 of the Cemeteries and
Crematoria Act 2003.
42B. Offence to cremate without cremation
15 authorisation
An offence under section 130 of the Cemeteries and
Crematoria Act 2003.
42C. Offence to make false statement in application for
cremation authorisation
20 An offence under section 132 of the Cemeteries and
Crematoria Act 2003.
42D. Offence to make false statement in application for
approval for cremation by Secretary
An offence under section 137 of the Cemeteries and
25 Crematoria Act 2003.
42E. Offence to make false statement in certificate of
registered medical practitioner authorising
cremation
An offence under section 140 of the Cemeteries and
30 Crematoria Act 2003.
42F. Offence to exhume other than in accordance with
Cemeteries and Crematoria Act 2003
An offence under section 155 of the Cemeteries and
Crematoria Act 2003.
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42G. Offence to dispose of falsely identified bodily
remains
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An offence under section 176 of the Cemeteries and
Crematoria Act 2003.".
5 185. New section inserted into the Crimes Act 1958
After section 34A of the Crimes Act 1958
insert--
"(5) Corpses
34B. Offence to interfere with corpse of a
10 human being
(1) A person must not intentionally--
(a) interfere sexually or commit an
indecent act with a corpse of a human
being; or
15 (b) unlawfully remove body parts from a
corpse of a human being--
whether that corpse is in a public cemetery
within the meaning of the Cemeteries and
Crematoria Act 2003 or at any other place.
20 Penalty: Level 6 (5 years maximum).
(2) Sub-section (1) does not apply to--
(a) any person who is engaged in the
preparation of a corpse of a human
being for the purposes of interment or
25 cremation within the meaning of the
Cemeteries and Crematoria Act
2003; or
(b) any other lawful interference with a
corpse of a human being, including a
30 lawful interference for the purposes of a
medical, scientific or hygienic
procedure.".
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186. Transitional provisions
Schedule 2 has effect.
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SCHEDULES
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S. 6(3).
SCHEDULE 1
MEMBERSHIP AND PROCEDURE OF CEMETERY TRUSTS
1. Terms of appointment of cemetery trust members
5 (1) A member of a cemetery trust holds office for the period,
not exceeding 5 years, specified in the instrument of his or
her appointment.
(2) A member of a cemetery trust is eligible for re-appointment.
(3) The instrument of appointment of a member of a cemetery
10 trust may specify terms and conditions of appointment.
(4) The Public Sector Management and Employment Act
1998 (except in accordance with Part 7 of that Act) does not
apply to a member in respect of the office of member.
2. Chairperson of cemetery trust
15 (1) The members of a cemetery trust must appoint one of the
members to be chairperson.
(2) A person appointed as chairperson of a cemetery trust--
(a) holds that office for the period not exceeding 5 years,
as determined by the cemetery trust; and
20 (b) is eligible for re-appointment.
(3) A person appointed as chairperson ceases to hold that office
on ceasing to be a member of the cemetery trust.
3. Resignation and removal of members
(1) A member of a cemetery trust may resign the office of
25 member by writing signed by the member and addressed to
the Minister.
(2) The Governor in Council, on the recommendation of the
Minister, may at any time remove a member of a cemetery
trust from office.
30 4. Vacancies in membership of cemetery trusts
If a member of a cemetery trust dies, resigns or is removed
from office, the Governor in Council, in accordance with
this Act, may fill the vacant office.
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5. Fees and allowances of members
(1) A member of a cemetery trust, other than a member who is
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an employee of the public service, is entitled to receive the
fees, travelling and other allowances from time to time fixed
5 by the Minister in respect of that member.
(2) The fees, travelling and other allowances payable to a
member of a cemetery trust are to be paid from the funds of
that trust.
6. Validity of decisions of cemetery trusts
10 (1) An act or decision of a cemetery trust is not invalid merely
because of--
(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
15 vacancy arising from 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--
20 (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 effect.
7. Presiding at meetings of cemetery trusts
25 The person who is to preside at a meeting of a cemetery
trust is--
(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 trust present at the
30 meeting.
8. Proceedings of cemetery trusts
(1) Subject to sub-clause (2), meetings of a cemetery trust are to
be held at the times and places that the chairperson
determines.
35 (2) The chairperson of a cemetery trust may at any time
convene a meeting, but must do so when requested by at
least 2 members of the trust.
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(3) A cemetery trust may permit its members to participate in a
particular meeting by--
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(a) telephone; or
(b) closed-circuit television; or
5 (c) any other means of communication.
(4) A member who participates in a meeting under a permission
under sub-clause (3) is deemed to be present at the meeting.
(5) A majority of the members for the time being constitutes a
quorum of a cemetery trust.
10 (6) A question arising at a meeting must be determined by a
majority of votes of members present and voting on that
question and, 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
15 each of its meetings.
(8) Subject to this clause, a cemetery trust may regulate its own
proceedings.
9. Disclosure of interest of cemetery trust members
(1) A member of a cemetery trust who has a direct or indirect
20 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.
(2) A member of a cemetery trust who holds an office or
25 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 disclose that fact at a
meeting of the trust as soon as possible after becoming
aware of the potential conflict.
30 (3) The person presiding at a meeting at which a disclosure
under this clause is made must 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
35 contract or other matter to which the disclosure relates.
(5) If a member votes on a matter in contravention of sub-clause
(4), his or her vote must be disallowed.
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SCHEDULE 2 S. 186.
TRANSITIONAL PROVISIONS
Victorian Legislation and Parliamentary Documents
1. General transitional provisions
(1) This Schedule does not affect or take away from the
5 Interpretation of Legislation Act 1984.
(2) If this Schedule provides that a provision of an Act
continues to apply to any matter or thing, then any
regulation or other instrument having effect under that Act
for the purposes of that provision also continues to apply to
10 that matter or thing.
(3) If, by virtue of this Schedule, a provision of an Act or a
regulation or instrument continues to apply to a matter or
thing, it continues to apply as in force immediately before
the provision was repealed or revoked.
15 (4) This Schedule applies despite anything to the contrary in
any other provision of this Act.
2. Superseded references
On and from 1 July 2005, in any Act (other than this Act or
a provision of the Cemeteries Act 1958 continued by this
20 Act), or in any instrument made under any Act or in any
other document of any kind--
(a) a reference to the Cemeteries Act 1958 is deemed to
be a reference to the Cemeteries and Crematoria
Act 2003; and
25 (b) a reference to a cemetery trust appointed under the
Cemeteries Act 1958 or to trustees of a public
cemetery is deemed to be a reference to a cemetery
trust established under Part 2; and
(c) subject to clause 9, a reference to rules and
30 regulations made by a cemetery trust under the
Cemeteries Act 1958 is deemed to be a reference
to--
(i) the model rules; or
(ii) if a cemetery trust makes cemetery trust rules,
35 those cemetery trust rules--
so far as the reference relates to any period on or after 1 July
2005 and unless the context otherwise requires.
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3. Cemetery trusts
(1) On 1 July 2005, a cemetery trust responsible for a public
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cemetery under the Cemeteries Act 1958 in existence
immediately before that date--
5 (a) is deemed to be a cemetery trust established under
Part 2 responsible for the management of the same
public cemetery and known by the same name; and
(b) continues in existence as if established under Part 2.
(2) On 1 July 2005, all money standing immediately before that
10 date to the credit of a fund or account of a cemetery trust
under the Cemeteries Act 1958 and any other money
belonging to the cemetery trust as at that date may, after that
date, be used or invested by a cemetery trust in accordance
with this Act.
15 (3) On 1 July 2005, the trustees or members of a cemetery trust
in office under the Cemeteries Act 1958 immediately
before that date--
(a) are deemed to be the members of the cemetery trust
continued in existence by sub-clause (1) appointed in
20 accordance with section 6; and
(b) continue in office for the remainder of their original
terms as if appointed under this Act.
(4) Despite sub-clause (3), a cemetery trust is to operate with
the number of members it had immediately before 1 July
25 2005 until--
(a) if there were less than 3 trustees immediately before
1 July 2005, the Governor in Council appoints new
members in accordance with this Act; or
(b) if there were more than 11 trustees immediately
30 before 1 July 2005, the number of initial members
falls to 11.
4. Public cemeteries and crematoria
(1) On 1 July 2005, a public cemetery in existence immediately
before that date is deemed to be a public cemetery
35 established in accordance with Part 2 with the same name as
it had before that date.
(2) On 1 July 2005, a crematorium in existence immediately
before that date is deemed to be a crematorium established
under section 21.
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(3) On 1 July 2005, any mausoleum established by a cemetery
trust under the Cemeteries Act 1958 in existence
immediately before that date is deemed to be a mausoleum
Victorian Legislation and Parliamentary Documents
facility established under section 22.
5 5. Rights of interment
(1) On 1 July 2005, an exclusive right of burial under the
Cemeteries Act 1958 in existence immediately before that
date--
(a) is deemed to be a right of interment specified in
10 section 75(a) of this Act in respect of the same site as
that exclusive right of burial; and
(b) is subject to any terms and conditions on which it was
originally granted under the Cemeteries Act 1958
which are not inconsistent with this Act.
15 (2) On 1 July 2005, any agreement for the interment of human
remains which was not for a limited period made with a
cemetery trust under the Cemeteries Act 1958 or the rules
made under that Act and in existence immediately before
that date--
20 (a) is deemed to be a right of interment specified in
section 75(a) of this Act in respect of the same site as
that to which the agreement related; and
(b) is subject to any terms and conditions on which it was
originally granted under the Cemeteries Act 1958
25 which are not inconsistent with this Act.
(3) On 1 July 2005, any agreement for the interment of human
remains for a limited period made with a cemetery trust
under the Cemeteries Act 1958 or the rules made under that
Act and in existence immediately before that date--
30 (a) is deemed to be a right of interment for a period not
exceeding the time for which it is granted; and
(b) may be converted to a 25 year right of interment or a
perpetual right of interment in accordance with
section 87 as if it were a right of interment referred to
35 in that section.
(4) On 1 July 2005, any agreement for the interment of human
remains in a public grave made with a cemetery trust under
the Cemeteries Act 1958 or the rules made under that Act
and in existence immediately before that date is deemed to
40 be a right of interment specified in section 75(b) of this Act.
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6. Interment authorisations and approvals
(1) On 1 July 2005, an application for a burial permit under
Victorian Legislation and Parliamentary Documents
section 19 of the Cemeteries Act 1958 which has been
made but not determined before 1 July 2005 is deemed to be
5 an application for an interment authorisation and may be
considered and determined by a cemetery trust accordingly.
(2) On 1 July 2005, a burial permit issued under section 19 of
the Cemeteries Act 1958 and in existence immediately
before that date is deemed to be an interment authorisation.
10 (3) On 1 July 2005, an application for an approval from the
Secretary for burial in any private ground or land under
section 47 of the Cemeteries Act 1958 which has been
made but not determined before 1 July 2005 is deemed to be
an application for an interment approval and may be
15 considered and determined by the Secretary accordingly.
(4) On 1 July 2005, an approval from the Secretary for burial in
any private ground or land under section 47 of the
Cemeteries Act 1958 and in existence immediately before
that date is deemed to be an interment approval.
20 7. Cremation authorisations and approvals
(1) On 1 July 2005, an application for permission to cremate a
corpse under section 76 of the Cemeteries Act 1958 which
has been made but not determined before 1 July 2005 is
deemed to be an application for a cremation authorisation
25 and may be considered and determined by a cemetery trust
accordingly.
(2) On 1 July 2005, any permission to cremate a corpse given
under section 76 of the Cemeteries Act 1958 and in
existence immediately before that date is deemed to be a
30 cremation authorisation.
(3) On 1 July 2005, an application for the consent the Secretary
to cremate or destroy human remains by fire in any place
outside a cemetery under section 79 of the Cemeteries Act
1958 which has been made but not determined before that
35 date is deemed to be an application for an approval to
cremate outside a public cemetery under section 135 and
may be considered and determined by the Secretary
accordingly.
(4) On 1 July 2005, a duly completed document authorising
40 cremation signed by the Secretary under section 77(1)(b)(iv)
of the Cemeteries Act 1958 and in existence immediately
before that date is deemed to be a cremation approval.
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8. Registers and records
On 1 July 2005, a register or record kept under the
Victorian Legislation and Parliamentary Documents
Cemeteries Act 1958 is deemed to be a record kept in
accordance with Part 4.
5 9. Trustees rules and regulations
On 1 July 2005--
(a) all rules and regulations made by a cemetery trust
under section 9 of the Cemeteries Act 1958 are
revoked; and
10 (b) the model rules apply to any public cemetery for
which a cemetery trust continued in existence under
clause 3 is responsible unless that cemetery trust
makes cemetery trust rules.
10. Continuation of entitlement under section 25(5) of the
15 Cemeteries Act 1958
Despite the repeal of section 25(5) of the Cemeteries Act
1958, a person who had a right to acquire an exclusive right
under section 25 in respect of a place of burial in existence
immediately before that repeal is entitled, on payment of the
20 relevant cemetery trust fee, to purchase a right of interment
specified in section 75(a) to that place.
11. Existing fees or charges or scales of fees and charges
On 1 July 2005, any scale of fees made by a cemetery trust
under section 17 or section 69 of the Cemeteries Act 1958
25 is deemed to be the cemetery trust fees in respect of that
public cemetery and, subject to this Act, remains in force
until 1 July 2006.
12. Administrators appointed under Cemeteries Act 1958
On 1 July 2005, any administrator appointed to manage a
30 public cemetery under section 6 of the Cemeteries Act 1958
and whose appointment was in force immediately before
that date is deemed to have been appointed to manage that
public cemetery in accordance with section 10.
13. Borrowings under Cemeteries Act 1958
35 Despite the repeal of section 8 of the Cemeteries Act 1958,
that section, as in force immediately before its repeal,
continues to apply in relation to any money borrowed by a
cemetery trust under that section immediately before its
repeal.
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14. Existing borrowings approved by Treasurer
Despite the repeal of section 8A of the Cemeteries Act
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1958, that section, other than sub-section (7), as in force
immediately before its repeal continues to apply in respect
5 of any moneys borrowed by a cemetery trust in accordance
with that section immediately before its repeal.
15. Permits to erect monuments and dig graves
(1) On 1 July 2005, a permit issued under section 18 of the
Cemeteries Act 1958 and in existence immediately before
10 that date is deemed to be an approval under section 99.
(2) Section 179 does not apply to a permit issued under section
18 of the Cemeteries Act 1958 which is deemed by sub-
clause (1) to be an approval under section 99.
16. Erecting monuments
15 (1) On 1 July 2005, a plan of a vault, monument or tombstone
proposed to be erected or placed in a cemetery submitted to
a cemetery trust and the Secretary under section 20 of the
Cemeteries Act 1958 which has not been determined before
that date is deemed, on that date, to be an application under
20 section 98 and may be considered and determined by a
cemetery trust accordingly.
(2) On 1 July 2005, a permit issued under section 20 of the
Cemeteries Act 1958 and in existence immediately before
that date is deemed to be an approval under section 99.
25 (3) Section 179 does not apply to a permit issued under
section 20 of the Cemeteries Act 1958 which is deemed by
sub-clause (2) to be an approval under section 99.
17. Noxious exhalations or evaporations
On 1 July 2005, a notice under section 22 of the Cemeteries
30 Act 1958 existing immediately before that date is deemed to
be a notice under section 106.
18. Repair of memorials
(1) On 1 July 2005, a notice under section 23 of the Cemeteries
Act 1958 existing immediately before that date is deemed to
35 be a notice under section 106.
(2) On 1 July 2005, a consent of the Secretary under
section 23(3)(b) of the Cemeteries Act 1958 existing
immediately before that date is deemed to be a consent of
the Secretary under section 106(4)(b).
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19. Money lent or paid and securities
Despite the repeal of sections 31 and 32 of the Cemeteries
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Act 1958, those sections, as in force immediately before
their repeal, continue to apply in respect of any sum lent or
5 paid under section 31 to a cemetery trust under that Act or
security given under section 32 of that Act.
20. Accounts and abstracts
Despite the repeal of sections 33, 34 and 35 of the
Cemeteries Act 1958, a cemetery trust must provide to the
10 Secretary by 1 October 2005, accounts, abstracts and a
statement for the period commencing 1 January 2005 and
ending 30 June 2005 containing the information referred to
in those sections as in force immediately before their repeal.
21. Exhumation licences
15 On 1 July 2005, any existing exhumation licence issued
under section 48 of the Cemeteries Act 1958 is deemed to
be an exhumation licence under this Act.
22. Overlay sites at Melbourne General Cemetery
Despite the repeal of section 46A of the Cemeteries Act
20 1958, that section, as in force immediately before its repeal,
continues to apply in respect of any right of burial or
interment to which that section applied immediately before
its repeal.
23. Mortuary churches or chapels
25 On 1 July 2005, a plan of a mortuary church or chapel
proposed to be erected and built in a cemetery submitted for
the approval of a cemetery trust under section 29 of the
Cemeteries Act 1958 which has not been determined before
that date is deemed, on that date, to be an application under
30 section 101 and may be considered and determined by a
cemetery trust accordingly.
24. Pioneer memorial parks
(1) On 1 July 2005, a pioneer memorial park established under
Part IA of the Cemeteries Act 1958 is deemed to be a
35 historic cemetery park.
(2) On 1 July 2005, a proposal to convert a cemetery to a
pioneer memorial park submitted to the Secretary under
section 60B(1) of the Cemeteries Act 1958 which has been