The Burial and Cremation Act 2013 (SA) (the Act) has now received assent and will shortly come into operation. The Act will regulate all cemeteries, burial grounds and related facilities in South Australia. Consequently it will repeal Part XXX of the Local Government Act 1934 (SA) (LG Act 1934) and the Cremation Act 2000 (SA), and will amend certain other Acts. It will also repeal and replace the existing Local Government (Cemetery) Regulations 2010 (SA) and the Local Government (Exhumation of Human Remains) Regulations 2005 (SA).

This article provides an overview of the changes most relevant to councils.

What is changing?

A council may for the purposes of the Act be the ‘relevant authority’ for a cemetery, a natural burial ground or a crematorium if the council is responsible for the administration of the facility. A relevant authority must observe certain requirement and exercise various functions under the Act.

Additionally, councils still have functions and powers in respect of facilities of which they are not the relevant authority. Some of these have been carried over from the LG Act 1934, while others are entirely new.

Establishment/assumption of management

Under the Act, any person may establish a cemetery, natural burial ground (a new, environmentally friendly concept) or crematorium. This includes councils. However, the Act does not carry over the requirement under the LG Act 1934 that councils must establish a cemetery if there is no adequate provision for the disposal of human remains of persons who die within its area.

The Act also allows councils to accept a trust from trustees of an existing cemetery or natural burial ground. Furthermore, a council may assume administration of a cemetery or natural burial ground if the relevant authority of the facility agrees to transfer administration or if there is no identifiable relevant authority.

Under the Act, councils retain their power to establish and manage public mortuaries.

Management

The relevant authority for a cemetery, natural burial ground or crematorium is responsible for various matters including interments, maintenance, and the setting aside of parts of cemeteries for specified purposes. The Act overhauls the way in which all such matters are to be managed. Furthermore, the relevant authority for a cemetery must keep certain prescribed registers, records and plans relating to matters including burials, exhumations, memorials and interment rights.

Where a council is of the opinion that a cemetery or natural burial ground is in a neglected condition or otherwise does not adhere to the requirements of the Act, the council may require the relevant authority (rather than the owner of the land as provided under the LG Act 1934) to carry out works to remedy the deficiency. In the event of default by the relevant authority, the council may carry out the works itself and recover its costs of doing so.

Councils may appoint an officer or employee of the council as an Authorised Officer for the purposes of the Act. Authorised Officers have extensive powers provided by Section 59 of the Act, including powers of entry, inspection, seizure and retention, and the giving of directions reasonably required in connection with the administration, operation or enforcement of the Act.

Closure

Formerly, cemeteries could only be closed by the Governor upon a petition from a council. Under the Act, a relevant authority (which may or may not be a council) may now close a cemetery or natural burial ground at its discretion provided that the facility is unsuitable for the disposal of human remains and has not had human remains interred in it for at least 50 years. Various procedural and consultation obligations must be adhered to in this regard.

Closed cemeteries on land held on trust by a council may be dedicated as park lands following a petition by the relevant authority to the Minister. Additionally, in certain circumstances the relevant authority for a closed cemetery may, under the Act, convert the closed cemetery into public parks or gardens by following certain procedural and consultation requirements.

Once a cemetery or natural burial ground is closed, the owner of the land may dispose of the land in the ordinary course of commerce (provided that all human remains have been removed).

Interment rights

The process for granting interment rights under the Act is substantially the same as under the Local Government (Cemetery) Regulations 2010 (SA). However, the Act removes the 99-year limit on interment rights, and provides for the renewal, assignment or surrender of interment rights (all of which carry certain procedural requirements both for the applicant and the relevant authority).

Councils with cemeteries and/or crematoria within their area should appoint Authorised Officers under the Act, and should review the operation of such facilities (whether or not the council is the ‘relevant authority’ for those facilities) to ensure they are being managed in accordance with the new Act.