Copyright © 2014. Catherine Ann Crout-Habel
The Regulations for South Australia’s new “Burial and Cremation Act 2014” were gazetted on 16 Jan 2014 which enables the Act to be commenced. I thank the helpful staff at our South Australian Attorney General’s Department for immediately forwarding this information along with copies of the Regulations and the Act. You can read about the consultation process by clicking HERE.
On 1 Feb 2014 all cemeteries in South Australia will finally come under one comprehensive Law which has been 10 years in the making. Sadly the re-use/ re-cycling of our Ancestor’s gravesites remains part of how Cemeteries are legally able to destroy and desecrate the burial sites of South Australian’s who were laid to R.I.P. and destroy their memorials.
The relevant sections of the legislation, dealing with this appalling sacrilege, are posted below. Please refer to the entire document for further information.
Burial and Cremation Regulations 2014
under the Burial and Cremation Act 2013
Part 3—Cemeteries, natural burial grounds and crematoria
(Excerpts below have been taken from pages 12, 13 & 14)
30—Renewal of interment rights (section 32 of Act)
A notice under section 32(2)(c) of the Act must inform the holder of the interment right of the following matters:
(a) that if the interment right is not renewed, the relevant authority is entitled to re-use the interment site under section 38 of the Act;
(b) the cost of renewing the interment right.
31—Surrender of interment rights (section 34 of Act)
The fee that may be deducted by a relevant authority from a refund under section 34(2) of the Act on the surrender of an interment right is an amount to be determined in accordance with Schedule 1.
32—Exercise or enforcement of interment rights (section 35 of Act)
If the holder of an interment right has died, the interment right may be exercised or enforced under section 35(1)(b) of the Act—
(a) by the spouse or domestic partner of the deceased interment right holder; or
(b) if there is no surviving spouse or domestic partner—by the eldest living relative of the deceased interment right holder in the following descending order of priority:
(i) a child;
(ii) a grandchild or great-grandchild;
(iii) a brother or sister;
(iv) a parent;
(v) a grandparent;
(vi) an aunt or uncle;
(vii) a nephew or niece;
(viii) a cousin;
(ix) any other blood relative.
33—Re-use of interment sites (section 38 of Act)
A notice under section 38(2)(b) of the Act must inform the personal representative or relative of the deceased that the relevant authority may re-use an interment site if the interment right relating to the site has expired and—
(a) the personal representative or relative of the deceased has informed the relevant authority that there is no objection on the part of the relatives to the re-use of the interment site; or
(b) the interment right is not renewed within 2 years from the date on which thenotice is given.
34—Disposal of unclaimed memorials (section 42 of Act)
A record kept under section 42(2) of the Act relating to a memorial that has been disposed of by a relevant authority must include—
(a) a digital photograph of the memorial that shows—
(i) any inscription on the memorial; and
(ii) the design of the memorial; and
(b) particulars of the previous location of the memorial within the cemetery or natural burial ground; and
(c) if it is not evident from the digital photograph—details of the materials from which the memorial was made.
• For further information relating to the Act and subordinate legislation made under the Act see the Index of South Australian Statutes or
Principal regulations –
Gazette 16.1.2014. p156 Commencement 1.2..2o14 except r 36—1.8.2014: r 2
DON’T FORGET THE DATE –
1 FEB 2014!!!
BURIAL AND CREMATION ACT 2013
Copyright © 2014. Catherine Ann Crout-Habel
Right now we all have a brief opportunity to make a real difference in ensuring that the descendants of those buried in South Australia are fully informed enabling them to take over expired leases, and save/ preserve the graves of their Ancestors, if this is what they wish – information is power.
South Australia has a new “Burial and Cremation Act 2013” which I’ve written about previously. The Draft Bill went through a Public Consultation process, passed the Parliament on 4 June 2013 and received Royal Assent on 14 June 2013.
This work to create a single Act to regulate the industry and to create consistency across the industry including the duration of interment rights, the closure and conversion of cemeteries and the re-use of interment sites, has ensured privately owned cemeteries are subject to the same regulatory scheme as publicly operated cemeteries. This began 10 years ago with the work of a Select Committee and has much to commend it e.g. the removal of the 99-year limitation on interment rights in public cemeteries but unfortunately the leasing arrangements, whereby a burial site can be re-used/ re-cycled if the lease is not renewed, remains.
However, all is not lost because the Act can not come into operation until the “Regulations” which describe how the Act will actually be administered have been written and passed by Parliament. It is most fortunate that our South Australian Attorney General/ Deputy Premier, John Rau, has called for public consultation on the Draft Regulations. Here is an opportunity for us all to put forward our views on aspects of this Bill crucial to family, family historians and genealogists… e.g.
*clarifying who is entitled to exercise, or enforce, an interment right when the holder of the lease has died.
*the manner in which descendants are advised the lease has expired and that if it remains unpaid the grave will revert to the control of the cemetery authority for “redevelopment” i.e. re-use/ re-cycling.
*the disposal of unclaimed memorials etc.
If you wish to take part in consultation on the Draft Regulations the contact person is:
Senior Legal Officer, Policy and Legislation
Responses need to be forwarded in little more than 2 weeks time i.e. by the close of business Friday 15 November 2013, at the latest, and sent to:
Burial and Cremation Regulations 2013 Consultation
c/o Legislative Services
GPO Box 464
ADELAIDE SA 5001
PLEASE NOTE: Consultation is not restricted to those residing in South Australia as many move interstate and/ or overseas trusting that their loved ones will be left to R.I.P. in their South Australian graves and with the memorials telling a little of their lives and especially the depth of love and feelings of loss.
For further information and/ or to discuss these matters with like minded folk you can always apply to join the “Saving Graves – South Australia” Facebook Group. Please click HERE for the details. Cheerio for now…
Copyright © 2013. Catherine Ann Crout-Habel
If you have an Ancestor(s) laid to R.I.P. in a South Australia Cemetery, their Gravesite may have been re-used/re-developed with their “bodily remains” placed deeper and a stranger buried on top, without your knowledge. Furthermore, unless the Memorial has been claimed by the lease holder/ grantee it will have been disposed of and a new memorial, for the latest occupant, taking its place.
This is not a post to distress but one to inform. In the words of Sir Francis Bacon
From what I’ve been able to ascertain, South Australia has always leased Burial Sites for a finite period. Initially it was 99 years and around the 1950’s this was reduced to 50 years and later to 25 years. If the lease/ grant expires, and is not renewed, the Gravesite becomes the property of the Cemetery as does the Memorial which can be disposed of “in such manner as it thinks fit”.
In 2012 the South Australian Parliament, after more than 10 years of work to bring all the legislation re: South Australian Cemeteries together in a coherent form, created the South Australian “Burial and Cremation Bill 2012”.
After public consultation and debate in the House of Representatives this Bill (with Amendments) moved to the Legislative Council and was passed there on 13 May 2013. What happened next was that, on 14 June 2013, this Bill was gazetted and “assented” and then became South Australia’s “Burial and Cremation Act 2013”
Now, here is where things become a bit confusing/ tricky. From all the info I’ve been able to find, the problem is that, whilst we have this new “Burial and Cremation Act 2013” it has not actually “commenced” yet… i.e. This new Act has not passed into Law, despite the three months that have passed since it was “assented”. When asking “Why not?” I was informed that “the Regulations” have not yet been written and it seems that “the Regulations” is the nitty gritty/ nuts and bolts of how this new South Australian “Burial and Cremation Act 2013” will actually be enforced. The regulations have not yet been written and so our new South Australian Act describing how Cemeteries Authorities need to manage
Phew!!! Hope you readers haven’t nodded off yet ‘cos I can tell you that there sure are a few matchsticks right next to me, should I need help to “keep my eyes peeled”.
Enquiring into this matter of the Regulations still to be written so this new “Act” will “commence” and become “Law”, I was assured, by the South Australian Attorney General’s office, that there will be a “consultation process” regarding the “regulations” and that I certainly am on the list to be informed when this will happen. It’s been over 2 months now and last time I enquired re: progress was informed that it “takes time” and won’t happen soon.
So, fact of the matter is that, the old law/ legislation is still in play. These old laws/ legislation are all we have to work with to keep our Ancestors safe in their Graves and our Family History intact until “the Regulations” get writ. From what I’ve been able to work out the Law/ Legislation available, at this time, is the South Australian “Local Government Cemetery Regulations 2010 and here is the LINK.
This is what the South Australian “Local Government Cemetery Regulations 2010” have to say re: the responsibility of “a cemetery authority” when writing the lease/ grant conditions.
This is how the “Local Government Cemetery Regulations 2010” read in regard to the actual lease signed by the “grantee” of the burial site of your Ancestor(s).
10—Grant of interment rights
(1) Before granting an interment right to a person, a cemetery authority must give the person a statement written in plain English that—
(a) includes the matters required by subregulation (2) to be included in the interment right; and
(b) sets out the rights and responsibilities of the cemetery authority and relativesof a deceased person whose remains may be interred pursuant to the interment right in relation to any memorial (including any unclaimed memorial) to the deceased person; and
(c) specifies the cost of the interment right and any options for periodic payment.
Maximum penalty: $200.
(2) An interment right granted by the cemetery authority must—
(a) identify the person to whom the interment right is granted; and
(b) identify the person or persons whose remains may be interred in pursuance of
the interment right or provide that a specified person or class of person may, at some future time, nominate the person or persons whose remains may be interred in pursuance of the interment right; and
(c) identify the site at which remains may be interred in pursuance of the interment right or provide for determination, in a manner set out in the interment right, of the site at which the remains may be interred in pursuance of the interment right; and
(d) specify the period for which the interment right is granted; and
(e) set out the rights (if any) to renewal of the interment right; and
(f) specify whether the interment right may be cancelled or transferred and set out any conditions governing its cancellation or transfer.
I’ve not been able to find, within this “Local Government Cemetery Regulations 2010” any requirements regarding the re-use/ renewal of Gravesites but am more than happy to be corrected.
Bottom line is that, until the “Regulations” for the new “Act” are written, and the new Law “commences” then we’re in some sort of limbo land.
Best advice I can give, right now, is that if you have family laid to R.I.P. in a South Australian cemetery that you do all you can to ensure that the Leaseholder has renewed the lease/grant. If this is impossible and you know the Cemetery involved be sure to contact them, find what is happening and if the grave is still intact please leave your contact details because it seems that one of the biggest problems is that people move house, die themselves and the Cemetery Authority is unable to contact family. It also seems that it’s mostly inner suburban cemeteries who re-use/ recycle gravesites but always worth checking out, I reckon.
That’s all from me, for now. Hope this is helpful information and am most happy to be told if I’ve got any of the facts, as I understand them to be, incorrect. Cheers.
Copyright © 2013. Catherine Ann Crout-Habel