Third Dimension – A new interment rights system for NSW – Complying with Part 4 of the Cemeteries and Crematoria Act 2013 (NSW)

November, 2018

By Clement Ngai, Paralegal

Introduction

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.’[1]

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:

  1. Perpetual interment rights – which remain in force in perpetuity (s 48)
  2. Renewable interment rights – which remain in force for an initial term of up to 99 years where cremated remains are interred (s 48), and an initial term of 25 years for human remains (s 54)

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:

  1. ensuring that interment rights:
    1. identify the person or persons to whom the right is granted,
    2. identify the interment site to which the right relates,
    3. specify the number of persons whose remains may be interred pursuant to the right at that site,
    4. identify the person or persons or class of persons whose remains may be interred pursuant to the interment right or provide that a specified person or person of a specified class may, at a future time, nominate the person or persons whose remains may be interred pursuant to the interment right,
    5. identify whether the interment right is granted as a perpetual interment right or as a renewable interment right,
    6. specify that the interment right may (subject to section 56 (4)) be transferred, and
    7. subject to any applicable mandatory code of practice requirement imposed under section 31, specify any other conditions on which the interment right is granted;
  2. ensuring that applications for transfers of interment rights are in a form approved by CCNSW, meeting all requirements under section 58 of the Act;
  3. preparing certificates of interment rights, to be provided whenever an interment right is granted, renewed, or transferred, in a form approved by CCNSW, and meeting all requirements under section 65 of the Act;
  4. developing and maintaining a register of all interment rights granted, memorials erected, interments carried out, and cremations carried out at the cemetery, in accordance with section 63 of the Act; and
  5. establishing a heritage advisory committee to advise on the heritage value of memorial and interment sites.

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.

Contact Mills Oakley

For further information, please do not hesitate to contact:


Vera Visevic | Partner
T: +61 2 8289 5812
E: vvisevic@millsoakley.com.au

[1] Vosnakis v Arfaras [2015] NSWSC 625, [65].

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