By Clement Ngai, Paralegal
The Cemeteries and Crematoria Act 2013 (NSW) (Act) is the centrepiece to a series of reforms to the NSW interment industry, initiated by the NSW State Government in 2012. The reforms were primarily introduced as a response to a diminishing supply of burial space, particularly in the greater metropolitan Sydney area. Key measures introduced in the Act included the establishment of Cemeteries and Crematoria NSW (CCNSW) as a regulatory agency for the interment industry, a register of all the cemeteries and crematoria within NSW, the development of codes of practice for the interment industry, and a consistent regulatory basis for the management of all cemeteries and crematoria in NSW, regardless of whether they are Crown, local government or private operators.
On 25 June 2018, Part 4 of the Act commenced alongside the Cemeteries and Crematoria Amendment Regulation 2018 (NSW) (Regulation), which together introduce a new interment rights system for NSW. The new system introduces significant changes to the requirements for the granting of interment rights by cemetery operators, and allows all cemeteries to grant renewable interment rights subject to certain conditions.
What are Interment Rights?
Having long existed under English law, interment rights are generally established through an agreement between a person and an authority that administers a cemetery. Interment rights generally provide a right to ‘designate a particular burial plot in the cemetery as being available for use as the burial place of any person nominated by the person who acquires the right.’
Interment rights do not, however, necessarily need to be perpetual in nature. In particular, some cemeteries in NSW currently offer ‘renewable interment rights’, which provide a right to inter human remains, and for these remains to be undisturbed for an initial period, along with an option of renewing the right for additional periods. If this interment right is not renewed, the interment site may be re-used, subject to certain requirements.
Before 25 June 2018, state legislation did not allow Crown cemeteries to offer renewable interment rights. On the other hand, interment rights granted by private cemeteries, and cemeteries managed by local governments, were created and defined by numerous pieces of legislation, contracts or other agreements, which could allow for ‘renewable interment rights’.
A new interment rights system
With the Cemeteries and Crematoria Act 2013 providing a consistent regulatory basis across Crown, private and local government cemeteries, the new interment rights system similarly applies to cemetery operators across all three areas of the cemetery sector.
Section 46 of the Act outlines the nature of interment rights, and the general obligations that cemetery operators have to uphold the rights. Included in the section are obligations to permit interment in accordance with the cultural or religious practices applicable to the particular part of the cemetery, and obligations to leave remains undisturbed in perpetuity unless the a renewable interment right applies.
Section 47 of the Act outlines the two types of interment rights that may be granted by all cemeteries:
When can interment sites be re-used?
Sections 54 and 55 of the Act contain numerous requirements that must be satisfied before an interment site may be reused. The flowchart below provides a brief outline of these requirements.
What do cemetery operators need to do in response?
Complying with all the requirements of the new interment rights system is likely to require the adoption of changes to practice, procedures and policies throughout the organisation. Some of the key changes that cemetery operators may need to make include:
Although Part 4 of the Act commenced on 26 June 2018, a 12 month transition period has been put in place until May 2019, in order to assist with the implementation process. CCNSW has further committed to progressively publishing information and resources on its website to assist both cemetery operators and consumers with adjusting to the new interment rights system. Throughout the transition period, cemetery operators must take active steps to ensure that their organisations fully comply with both the Act and the Regulation, and keep abreast of any information and resources published and provided by CCNSW.
For further information, please do not hesitate to contact:
Vera Visevic | Partner
T: +61 2 8289 5812
 Vosnakis v Arfaras  NSWSC 625, .