CEMETERIES AND CREMATORIA ACT 2003

Victorian Consolidated Legislation

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CEMETERIES AND CREMATORIA ACT 2003

No. 80 of 2003
Version incorporating amendments as at 1 July 2010

TABLE OF PROVISIONS

Section Page

PART 1-PRELIMINARY

1. Purposes
2. Commencement
2A. Objects
3. Definitions

PART 2-CEMETERIES AND CEMETERY TRUSTS

4. Establishment of public cemeteries
5. Establishment of cemetery trusts
5A. Conversion of certain regional cemetery trusts to Class A cemetery trusts
5B. Abolition of certain cemetery trusts and establishment of
new Class A cemetery trusts
6. Constitution and membership of Class B cemetery trusts
6A. Constitution and membership of Class A cemetery trusts
6B. Cemetery trusts are Class B cemetery trusts unless order or
Act otherwise specifies
7. Cemetery trusts do not represent the Crown
8. Management of public cemeteries
9. Effect of order abolishing cemetery trust
9A. Conversion order-Class A cemetery trust or Class B
cemetery trust
10. Appointment of an administrator
11. Membership of cemetery trust not office of profit
12. Functions of Class B cemetery trusts
12A. Functions of Class A cemetery trusts
12B. Application of Public Administration Act 2004-converted cemetery trusts
13. General powers of cemetery trusts
14. Powers in respect of more than one cemetery
15. Power to delegate
16. Immunity of members of cemetery trust
17. Staff and other assistance
18. Secretary may give directions to cemetery trusts
18A. Secretary to develop policies and plans for cemetery and crematoria sector

PART 2A-ADDITIONAL REQUIREMENTS FOR CLASS A CEMETERY TRUSTS

18B. Establishment and functions of governance committees
18C. Membership and procedure
18D. Community advisory committees
18E. Functions of community advisory committee
18F. Membership and procedure of community advisory committees
18G. Community advisory committee guidelines
18H. Annual meeting
18I. Notice of annual meeting
18J. Leadership role for Class B cemetery trusts
18K. Listed Class B cemetery trusts
18L. Chief executive officer
18M. Chief executive officer's functions
18N. Annual plans
18O. Strategic plans
18P. Annual plan and strategic plan guidelines
18Q. Payment of levy

PART 3-MANAGEMENT OF PUBLIC CEMETERIES

Division 1-General management powers

19. Power to carry out works in public cemetery
20. Setting aside areas
21. Establishment of a crematorium
22. Establishment of mausolea facilities
23. Secretary may revoke approvals
24. Interference with distribution of land
25. Model rules
26. Power to make cemetery trust rules
27. Approval and publication of cemetery trust rules
28. Governor in Council may revoke cemetery trust rules

Division 2-Powers in respect of land

29. Effect of Division
30. Cemetery trust may purchase or acquire land for cemetery
31. Minister may acquire land
32. Land Acquisition and Compensation Act 1986 applies
33. Land purchased or acquired vests in Crown
34. Land permanently reserved
35. References to acquiring authority
36. Power to grant licences over cemetery land
37. Power of trusts to lease cemetery land
38. Registrar of Titles to amend Register

Division 3-Financial powers

39. Power to fix fees and charges for services
40. Secretary to approve fees and charges
40A. Secretary may exempt certain fees and charges from approval
41. Secretary to publish notice of approval
42. Secretary to publish fees and charges on the Internet
42A. Fees and charges guidelines
43. Fees and charges to increase by CPI
44. Waiver or reduction of fees or charges
45. Investment powers
46. Borrowing powers
47. Payments for private streets

Division 4-Accounts and reports

48. Application of Division
49. Cemetery trust to keep accounts and records
50. Auditing of accounts and records
51. Secretary may ask for investigation
51A. Secretary to determine terms of reference and other matters
51B. Auditor's authority
51C. Powers of auditors
51D. Report to Secretary
51E. Confidentiality requirements
52. Report to Secretary on operations and accounts
52A. Class A cemetery trust-operational report

Division 5-Management by municipal councils

53. Municipal council may manage public cemetery
54. Limits on power to delegate
55. Borrowing and investment powers of councils
56. Use of council funds
57. Report to Secretary
58. Secretary may inspect accounts and records

PART 4-CEMETERY RECORDS

59. Cemetery trust to keep records
60. Can the public inspect records?
61. Records as evidence

PART 5-CLOSURE OF PUBLIC CEMETERIES AND
HISTORIC CEMETERY PARKS

Division 1-Closure of public cemeteries

62. Order closing public cemetery
63. Effect of order closing public cemetery
64. What happens to rights of interment in a closed cemetery?
64A. Order reopening closed cemetery
64B. Effect of order reopening a closed cemetery

Division 2-Historic cemetery parks

65. Definitions
66. Application to Minister to approve conversion to a historic cemetery park
67. Minister may approve conversion to historic cemetery park
68. Rights of interment cancelled
69. Cemetery trust to notify holders of rights of interment
70. Cemetery trust to prepare plan of existing places of interment
71. Cemetery trust may remove memorials
72. What happens if a right of interment is cancelled under this Division?

PART 6-RIGHTS OF INTERMENT IN A PUBLIC
CEMETERY

Division 1-Rights of interment generally

73. Cemetery trust may grant right of interment
74. How long does a right of interment last?
75. What types of rights of interment can be granted?
76. Right of interment may be allocated or unallocated
77. Entitlements of right of interment for interring human
remains
78. Exercising a right of interment

Division 2-Transfer and surrender

79. Can a right of interment be transferred to another person?
80. Transfer of right of interment must be recorded
81. Offence to receive certain consideration for right of interment
82. Surrender to cemetery trust of unexercised right of interment
by sole holder
83. Surrender to cemetery trust of exercised right of interment by sole holder
84. Surrender to cemetery trust of right of interment-more than
one holder

Division 3-Conversion of limited rights of interment

85. Cemetery trust to offer to convert 25 year limited right of interment
86. Cemetery trust may remove cremated human remains and memorial
87. Conversion or extension of a 25 year limited right of
interment

Division 4-Lift and re-position procedure

88. Application to carry out lift and re-position procedure
89. Cemetery trust may approve or refuse application
90. Approval to carry out lift and re-position procedure without exhumation licence

Division 5-Cancellation and discontinuance

91. When can a cemetery trust cancel a right of interment?
92. What happens if a right of interment is cancelled?
93. Order discontinuing granting rights of interment
94. Effect of order discontinuing granting rights of interment

PART 7-MEMORIALS, PLACES OF INTERMENT AND BUILDINGS FOR CEREMONIES

Division 1-Memorials and places of interment

95. Offence to desecrate memorials
96. Offence to desecrate places of interment

Division 2-Cemetery trust approvals

97. Definition of place of interment limited
98. Application for establishment or alteration of memorials and places of interment
99. Cemetery trust may approve or refuse the application
100. Cemetery trust may remove memorials or places of interment
101. Approval for establishment or alteration of a building for ceremonies
102. Cemetery trust may approve or refuse the application
103. Cemetery trust may remove building for ceremonies

Division 3-Maintenance of memorials, places of interment and buildings for ceremonies

104. Duty to maintain memorial or place of interment or buildings
for ceremonies
105. What is meant by a safe and proper condition?
106. Powers of a cemetery trust-memorials and places of
interment
107. Powers of a cemetery trust-buildings for ceremonies
108. Recovery of costs and expenses
109. What if the holder of right of interment or responsible person cannot be found?
110. Cemetery trust may repair or maintain from other funds
111. Cemetery trust may enter agreements to maintain memorials
and places of interment
112. Cemetery trust may sell and supply memorials

PART 8-INTERMENT OF BODILY REMAINS

Division 1-Interment generally

113. Bodily remains interred for perpetuity
114. Unlawful interment
115. Offence to inter bodily remains in public cemetery without interment authorisation

Division 2-Interment authorisations

116. Application for interment authorisation
117. Offence to make false statement in application for interment authorisation
118. Grant of interment authorisation
119. Conditions on interment authorisation
120. Offence to fail to comply with interment authorisation

Division 3-Interment approvals

121. Application for interment approval for interment other than
in a public cemetery
122. Offence to make false statement in application for interment approval
123. Grant of interment approval
124. Conditions on interment approval
125. Offence to fail to comply with interment approval
126. Notice of interment approval to Registrar of Titles
127. Secretary to notify Registrar of Titles to remove notice

PART 9-CREMATION

Division 1-Cremation generally

128. Interment of cremated human remains
129. Unlawful cremation
130. Offence to cremate without cremation authorisation

Division 2-Cremation authorisation

131. Application for cremation authorisation
132. Offence to make false statement in application for cremation authorisation
133. Grant of cremation authorisation

Division 3-Approvals by Secretary

134. Secretary may grant cremation approval
135. Application for approval to cremate in a place other than a crematorium in a public cemetery
136. Approval by Secretary
137. Offence to make false statement in application to Secretary
138. Who can sign certificate of a registered medical practitioner authorising cremation?
139. Refusal to sign certificate of registered medical practitioner authorising cremation
140. Offence to make false statement in certificate of registered medical practitioner authorising cremation
141. Offence to inter cremated human remains in public cemetery without authority

PART 10-INTERMENT AND CREMATION OF DECEASED POOR PERSONS

142. Prescribed person may apply for order
143. Magistrates' Court may make order
144. Order to generally specify cremation
145. Trust must comply with order

PART 11-OTHER DISPOSITION OF HUMAN REMAINS

Division 1-Disposal other than by interment or cremation

146. Disposal by methods other than interment or cremation
147. Secretary may grant approval
148. Secretary may vary or revoke approval
149. Cemetery trust to cease using method if approval revoked

Division 2-Interment or cremation of body parts

150. Interment or cremation of body parts
151. Application for interment or cremation of body parts
152. Grant of authorisation
153. Offence to inter body parts in public cemetery without
authority

PART 12-EXHUMATION AND REMOVAL

154. Part does not apply to exhumation under Coroners Act
155. Offence to exhume other than in accordance with this Act
156. Application to Secretary for exhumation licence
157. Grant of exhumation licence
158. Exhumation licence required to move remains to another
location
158A. False statements
159. Offence to fail to comply with exhumation licence

PART 13-ENFORCEMENT

Division 1-Enforcement powers

160. Appointment of authorised officers
161. Identity card
162. Offence not to produce identity card
163. Powers of entry and inspection
164. Retention and return of seized documents or equipment
165. Search warrants
166. Announcement before entry
167. Details of warrant to be given to occupier
168. Copies of seized documents
169. Refusal or failure to comply with requirement
170. Offence to hinder or obstruct authorised officer
171. Offence to give false or misleading information
172. Protection against self-incrimination
173. Offence to impersonate authorised officer
174. Who may prosecute?
175. Extended period to prosecute certain offences

Division 2-Offences

176. Offence to dispose of falsely identified bodily remains
177. Indictable offences
178. Offences by bodies corporate

PART 14-GENERAL

179. Review by VCAT
180. Regulations and model rules

PART 15-REPEALS, TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS

181-185. Repealed
186. Transitional provisions
__________________
SCHEDULE 1-Membership and Procedure of Class B
Cemetery Trusts
1. Terms of appointment of Class B cemetery trust members
2. Chairperson of Class B cemetery trust
3. Resignation and removal of members
4. Vacancies in membership of Class B cemetery trusts
5. Fees and allowances of members
6. Validity of decisions of Class B cemetery trusts
7. Presiding at meetings of Class B cemetery trusts
8. Proceedings of Class B cemetery trusts
9. Disclosure of interest of Class B cemetery trust members
SCHEDULE 1A-Membership and Procedure of Class A
Cemetery Trusts
1. Terms of appointment
2. Chairperson of Class A cemetery trust
3. Resignation and removal of members
4. Vacancies in membership
5. Remuneration, fees and allowances of members
6. Validity of decisions of cemetery trusts
7. Presiding at meetings of Class A cemetery trusts
8. Proceedings of Class A cemetery trusts
9. Disclosure of interest of Class A cemetery trust members
SCHEDULE 2-Transitional Provisions
1. General transitional provisions
2. Superseded references
3. Cemetery trusts
4. Public cemeteries and crematoria
5. Rights of interment
6. Interment authorisations and approvals
7. Cremation authorisations and approvals
8. Registers and records
9. Trustees rules and regulations
10. Continuation of entitlement under section 25(5) of the Cemeteries Act 1958.
11. Existing fees or charges or scales of fees and charges
12. Administrators appointed under Cemeteries Act 1958.
13. Borrowings under Cemeteries Act 1958.
14. Existing borrowings approved by Treasurer
15. Permits to erect monuments and dig graves
16. Erecting monuments
17. Noxious exhalations or evaporations
18. Repair of memorials
19. Money lent or paid and securities
20. Accounts and abstracts
21. Exhumation licences
22. Overlay sites at Melbourne General Cemetery
23. Mortuary churches or chapels
24. Pioneer memorial parks
25. Third Schedule certificate
SCHEDULE 3-Regional Class A Cemetery Trusts
1. Application of Schedule
2. Conversion to Class A cemetery trusts
3. Trust members
4. Property and staff
5. Amendment of Register
6. Validity of things done under this Schedule
SCHEDULE 4-Abolition of Certain Cemetery Trusts and Establishment of New Class A Cemetery Trusts

PART 1-PRELIMINARY
1. Definitions
2. Appointed days

PART 2-ESTABLISHMENT OF CLASS A CEMETERY
TRUSTS
3. The Mildura Cemetery Trust
4. The Greater Metropolitan Cemeteries Trust
5. The Southern Metropolitan Cemeteries Trust
6. Substitution of party to agreement
7. Former instruments
8. Proceedings
9. Interests in land
10. Transfer order-former council managed cemetery trusts
11. Effect of transfer order
12. Interim CEO
13. Transfer of staff
14. Future terms and conditions of staff
15. Listed employees
16. Staff transfer date
17. Transfer of listed employees
18. Future terms and conditions of transferred listed employees
19. Cemetery trust fees
20. Construction of references

PART 3-GENERAL
21. Amendment of Register
22. Taxes
23. Validity of things done under this Schedule
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ENDNOTES
1. General Information
2. Table of Amendments
3. Explanatory Details
INDEX

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