New South Wales: Cemeteries and Crematoria Act 2013 (NSW)

Cemeteries and Crematoria Act 2013 No 105 An Act to make provision for and with respect to the management and operation of cemeteries and crematoria; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Cemeteries and Crematoria Act 2013. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Objects of Act The objects of this Act are as follows— (a) to recognise the right of all individuals to a dignified interment and treatment of their remains with dignity and respect, (b) to ensure that the interment practices and beliefs of all religious and cultural groups are respected so that none is disadvantaged and adequate and proper provision is made for all, (c) to ensure that sufficient land is acquired and allocated so that current and future generations have equitable access to interment services, (d) to provide for the operation of a consistent and coherent regime for the governance and regulation of cemeteries and crematoria, (e) to ensure that the operators of cemeteries and crematoria demonstrate satisfactory levels of accountability, transparency and integrity, (f) to ensure that cemeteries and crematoria on Crown land are managed in accordance with the principles of Crown land management specified in section 1.4 of the Crown Land Management Act 2016, (g) to promote environmental sustainability of the interment industry, including provision for natural and private burials, (h) to promote that cost structures for burials and cremations are transparent across all sectors of the interment industry, (i) to promote affordable and accessible interment practices, particularly for those of limited means. 4 Interpretation (1) Expressions used in this Act that are defined in the Dictionary have the meanings set out in the Dictionary. (2) Unless the contrary intention is shown, a reference in this Act to— (a) a cemetery includes a reference to— (i) a crematorium, and (ii) a part of a cemetery or crematorium, and (b) a cemetery operator includes a reference to— (i) a crematorium operator, and (ii) an operator of part of a cemetery or crematorium. (3) An expression that is used in this Act and that is defined in the Crown Land Management Act 2016 (not being an expression that is defined in this Act) has the same meaning in this Act in relation to a Crown cemetery or Crown cemetery operator as it has in that Act in relation to dedicated or reserved Crown land or a person responsible for the care, control and management of dedicated or reserved Crown land, respectively. Note— Expressions used in this Act (or in a particular provision of this Act) that are defined in the Interpretation Act 1987 have the meanings set out in that Act. See also section 3.1 (Responsibility for management of Crown land) of the Crown Land Management Act 2016. (4) Notes included in this Act do not form part of this Act. 5 Relationship of Act and Crown Land Management Act 2016 and other legislation (1) Nothing in the Crown Land Management Act 2016 or an instrument made under that Act (including any regulations or plan of management for dedicated or reserved Crown land) prevents or restricts the use of a reserve for anything that is authorised, permitted or required by or under this Act. (2) If provision is made both by or under the Crown Land Management Act 2016 and this Act in relation to the exercise of functions by, or in respect of, a Crown cemetery operator in the same or substantially the same circumstances the function is not exercisable under the Crown Land Management Act 2016. (3) In the event of any inconsistency between the provisions of this Act or the regulations and a provision of the Crown Land Management Act 2016 or any other State legislation that is prescribed by the regulations as an inconsistent provision for the purposes of this section, the provisions of this Act or the regulations (as the case may be) prevail to the extent of the inconsistency. (4) Except as expressly provided by this Act, this Act does not affect the operation of the following or any other Acts, or any regulations made under those Acts, to the extent that they apply to, or in respect of, the operation of cemeteries or crematoria— (a) Aboriginal Land Rights Act 1983, (b) Fair Trading Act 1987, (c) Funeral Funds Act 1979, (d) Heritage Act 1977, (e) National Parks and Wildlife Act 1974, (f) Public Health Act 2010, (g) Biodiversity Conservation Act 2016. Part 2 Administration Division 1 Constitution and management of Cemeteries Agency 6 Constitution of Cemeteries and Crematoria NSW There is constituted by this Act a body corporate with the corporate name of Cemeteries and Crematoria NSW. Note— Section 50 of the Interpretation Act 1987 provides for the powers of a statutory corporation. 7 Status of Cemeteries Agency (1) The Cemeteries Agency is a NSW Government agency. (2) (Repealed) 8 Control and management of Cemeteries Agency (1) All decisions relating to the functions of the Cemeteries Agency are to be made by or under the authority of the Board. (2) The Chief Executive Officer is responsible for the day-to-day management of the affairs of the Cemeteries Agency, subject to the policies and directions of the Board. Note— The Cemeteries Agency may delegate certain of its functions to the Chief Executive Officer (who is a member of the Board) and other persons. However under section 11 (3) it cannot delegate functions such as the power to issue a short term order. (3) Any act, matter or thing done in the name of, or on behalf of, the Cemeteries Agency by or under the authority of the Board or the Chief Executive Officer is taken to have been done by the Cemeteries Agency. 9 Ministerial control of Cemeteries Agency (1) The Cemeteries Agency is, in the exercise of its functions, subject to the control and direction of the Minister, except in relation to the following— (a) the contents of any advice, report or recommendation given to the Minister, (b) decisions whether to grant, suspend or cancel a licence held by a particular person under an interment industry scheme, (c) decisions whether to institute civil or criminal proceedings in a particular case. (2) The Minister must— (a) give the Cemeteries Agency reasonable notice before giving it any direction with respect to the exercise of its functions and provide it with an opportunity to comment on the proposed direction within a time specified by the Minister, and (b) give the direction in writing. (3) The Cemeteries Agency is to publish a copy of the direction in the Gazette. 10 Staff of Cemeteries Agency (1) Persons may be employed in the Public Service to enable the Cemeteries Agency to exercise its functions. (2) The Cemeteries Agency may engage such consultants and independent contractors as it requires to exercise its functions. (3) The Cemeteries Agency may arrange for one or more police officers to be made available (by way of secondment or otherwise) to perform services for the Cemeteries Agency. Note— See section 95A of the Police Act 1990. 11 Delegation of functions (1) The Cemeteries Agency may delegate to an authorised person any of its functions, other than this power of delegation. (2) A delegate may sub-delegate to an authorised person any function delegated by the Cemeteries Agency if the delegate is authorised in writing to do so by the Cemeteries Agency. (3) The following powers may not be delegated— (a) the power under section 14 to acquire land in certain circumstances, (b) the power under section 36 to make a short term order. (4) In this section, authorised person means— (a) a member of the Board, or (b) a member of staff of a Government agency, or (c) a person, or person of a class, prescribed by the regulations. Division 2 Functions of Cemeteries Agency Subdivision 1 Principal functions 12 Functions—generally (1) The functions of the Cemeteries Agency include the following— (a) to assess current and future interment needs and develop planning strategies for cemetery space to meet those needs, (b) to provide advice or make recommendations to the Minister in relation to the sustainable use of cemetery and crematorium space and capacity, (c) to promote environmentally sustainable practices in the interment industry, (d) to develop, approve and promote codes of practice for cemeteries and crematoria and report on adoption of those codes by the interment industry, (e) to provide advice or make recommendations to the Minister on the establishment, implementation or alteration of interment industry schemes, (f) to regulate the provision of services in relation to interment matters that are subject to interment industry schemes, (g) to keep under review the policies, operating procedures and activities of the interment industry, including cemeteries, crematoria, providers of funeral goods and services, and operators of funeral funds, (h) to collect information and carry out research as is necessary to exercise its functions. (2) The Cemeteries Agency must, within 12 months after it is constituted, prepare a strategic plan outlining its key objectives and time frames for implementation of those objectives. (3) The Cemeteries Agency must publish the strategic plan in the Gazette. (4) In exercising its functions, the Cemeteries Agency is to have regard to the objects of this Act. 13 Other functions (1) The Cemeteries Agency has such other functions as are conferred or imposed on it by or under this or any other Act. (2) The Cemeteries Agency may do all such supplemental, incidental or consequential acts as may be necessary or expedient for the exercise of its functions. Subdivision 2 Ancillary functions 14 Reserve power to acquire land in the public interest (1) The Cemeteries Agency may— (a) with the consent of the Minister and subject to such conditions as the Minister thinks fit to impose do either or both of the following— (i) acquire land by agreement (not compulsory process) for the purpose of providing land for cemetery purposes, (ii) transfer the land to a Crown cemetery operator or other operator or prospective operator of a cemetery, or (b) with the approval of the Minister administering the Crown Land Management Act 2016 and subject to such conditions as the Minister thinks fit to impose, require a Crown cemetery operator to acquire land by agreement (not compulsory process) for the purposes of the Crown cemetery under its care, control and management. (2) The power under subsection (1) is to be exercised only if the Cemeteries Agency considers it necessary or desirable to acquire the land to ensure equitable access to interment services by one or more religious or cultural groups or the community generally. (3) The power under subsection (1) is to be exercised in relation to a Crown cemetery trust only if the Cemeteries Agency and the Minister concerned— (a) are satisfied that the Crown cemetery trust concerned has sufficient funds available for the acquisition, and (b) has taken into consideration the impact of the land acquisition on the operator, including (without limitation) the long term financial implications for the care, control and management of the additional land. (4) For the purposes of the Public Works and Procurement Act 1912, any acquisition of land under subsection (1) (a) is taken to be an authorised work, and the Cemeteries Agency is, in relation to that authorised work, taken to be the Constructing Authority. (5) Sections 34, 35, 36 and 37 of the Public Works and Procurement Act 1912 do not apply to or in respect of works constructed on land acquired under this section. 15 Arrangements with other persons and bodies The Cemeteries Agency may— (a) appoint agents, and act as an agent, for other persons and bodies, and (b) enter into arrangements with a government agency with respect to the exercise under this Act of the functions of authorised officers. Division 3 The Board Subdivision 1 Constitution of Board 16 Board of the Cemeteries Agency (1) There is to be a Board of the Cemeteries Agency. (2) The Board is to consist of the following members— (a) a person appointed by the Minister by instrument in writing as the Chair of the Board, (b) 3 persons appointed by the Minister by instrument in writing who, in the opinion of the Minister, have professional expertise, qualifications or experience that is relevant to the functions exercisable by the Board, (c) the head of, or a person nominated by the head to represent each of the following— (i) the Department of Planning and Infrastructure, (ii) the Office of Environment and Heritage, Department of Premier and Cabinet, (iii) NSW Fair Trading, Department of Finance and Services, (iv) the Crown Lands Division, Department of Trade and Investment, Regional Infrastructure and Services, (d) a person nominated by the Director General of the Ministry of Health to represent NSW Health, (e) a person who— (i) has knowledge and expertise relevant to local government matters, and (ii) is appointed by the Minister after consultation with the head of, or a person nominated by the head to represent, the Division of Local Government, Department of Premier and Cabinet, Local Government NSW and Local Government Managers Australia, NSW, (f) the Chief Executive Officer. (3) The persons appointed under subsection (2) (b) must include one person nominated by the Combined Pensioners and Superannuants Association of NSW who has knowledge and expertise relevant to consumer and customer advocacy. (4) A person is not eligible to be a voting member of the Board if the person is an interment industry participant. (5) A member referred to in subsection (2) (c), (d), (e) or (f) (a non-voting member) is not entitled to vote on any matter considered by the Board. (6) The Minister is, by an instrument of appointment or a subsequent instrument, to appoint one of the members referred to in subsection (2) (b) as the Deputy Chair of the Board. (7) In this section— interment industry participant means a person who is— (a) a proprietor, partner, shareholder or unit holder of a partnership, company, unit trust scheme or other business or entity that is a cemetery operator, funeral contribution fund, funeral director or other participant in the interment industry, or (b) a director, chief executive officer, manager, member of the management committee or other office holder, or is otherwise involved in the control or management, of such a participant, or (c) is an employee of such a participant. (8) Schedule 1 contains provisions with respect to the members and procedure of the Board. Subdivision 2 Duties and liabilities of Board members 17 Interpretation A person is involved in a contravention of a provision of this Division if, and only if, the person— (a) has aided, abetted, counselled or procured the contravention, or (b) has induced, whether by threats or promises, or otherwise, the contravention, or (c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the contravention, or (d) has conspired with others to effect the contravention. 18 Care and diligence—civil obligation only (1) Care and diligence—voting members of Board A voting member of the Board must exercise his or her powers and discharge his or her duties with the degree of care and diligence that a reasonable person would exercise if the person— (a) were a member of the Board in the Cemeteries Agency's circumstances, and (b) occupied the office held by, and had the same responsibilities as, the member of the Board. Maximum civil penalty: $27,500. (2) Business judgment rule A voting member of the Board who makes a business judgment is taken to meet the requirements of subsection (1), and the member's equivalent duties at common law and in equity in respect of the judgment, if the member— (a) makes the judgment in good faith for a proper purpose, and (b) does not have a material personal interest in the subject matter of the judgment, and (c) informs the member about the subject matter of the judgment to the extent that the member reasonably believes to be appropriate, and (d) rationally believes that the judgment is in the best interests of the Cemeteries Agency. (3) The voting member's belief that the judgment is in the best interests of the Cemeteries Agency is a rational one unless the belief is one that no reasonable person in the member's position would hold. Note— This subsection only operates in relation to duties under this section and the equivalent duties at common law or in equity (including the duty of care that arises under the common law principles governing liability for negligence)—it does not operate in relation to duties under any other provision of this Act or under any other laws. (4) In this section— business judgment means any decision to take or not take action in respect of a matter relevant to the functions of the Cemeteries Agency. 19 Disclosure of material personal interest—civil obligations (1) If— (a) a member of the Board has a direct or indirect material personal interest in a matter being considered or about to be considered at a meeting of the Board, and (b) the interest appears to raise a conflict with the proper performance of the member's duties in relation to the consideration of the matter, the member must, as soon as possible after the relevant facts have come to the member's knowledge, disclose the nature of the interest at a meeting of the Board. Maximum civil penalty: $5,500. (2) A disclosure by a member of the Board at a meeting of the Board that the member— (a) is a member, or is in the employment, of a specified company or other body, or (b) is a partner, or is in the employment, of a specified person, or (c) has some other specified interest relating to a specified company or other body or to a specified person, is a sufficient disclosure of the nature of the interest in any matter relating to that company or other body or to that person which may arise after the date of the disclosure and which is required to be disclosed under this section. (3) Particulars of any disclosure made under this section must be recorded by the Cemeteries Agency in a book kept for the purpose and that book must be open at all reasonable hours to inspection by any person. (4) After a member of the Board has disclosed the nature of an interest in any matter, the member must not, unless the Minister or the Board otherwise determines— (a) be present during any deliberation of the Board with respect to the matter, or (b) take part in any decision of the Board with respect to the matter. Maximum civil penalty: $5,500. (5) For the purposes of the making of a determination by the Board under subsection (4), a member of the Board who has a direct or indirect material personal interest in a matter to which the disclosure relates must not— (a) be present during any deliberation of the Board for the purpose of making the determination, or (b) take part in the making by the Board of the determination. (6) A contravention of this section does not invalidate any decision of the Board. 20 Use of position—civil obligations (1) Use of position—member of the Board A member of the Board must not improperly use his or her position to— (a) gain an advantage for the member of the Board or someone else, or (b) cause detriment to the Cemeteries Agency. Maximum civil penalty: $27,500. (2) A person who is involved in a contravention of subsection (1) contravenes this subsection. Maximum civil penalty: $27,500. 21 Use of information—civil obligations (1) Use of information—former member of Board A person who obtains information because they are, or have been, a member of the Board must not improperly use the information to— (a) gain an advantage for the member of the Board or someone else, or (b) cause detriment to the Cemeteries Agency. Maximum civil penalty: $27,500. (2) The duty under subsection (1) continues after the person stops being a member of the Board. (3) A person who is involved in a contravention of subsection (1) contravenes this subsection. Maximum civil penalty: $27,500. Division 4 Finance 22 The Cemeteries Agency Fund (1) There is to be established in the Special Deposits Account a Cemeteries and Crematoria NSW Fund (the Cemeteries Agency Fund) into which is to be paid the following— (a) all money advanced to the Cemeteries Agency by the Treasurer or appropriated by Parliament for the purposes of the Cemeteries Agency, (b) all money directed or authorised to be paid into the Cemeteries Agency Fund by or under this or any other Act, (c) levies or other payments made under section 24, (d) payments directed to be paid to the Cemeteries Agency under section 40, (e) the proceeds of the investment of money in the Cemeteries Agency Fund, (f) all money received by the Cemeteries Agency from any other source. (2) Money may be paid from the Cemeteries Agency Fund for the following purposes— (a) enabling the Cemeteries Agency to exercise its functions, (b) the acquisition of land under section 14. (3) All expenditure incurred by the Cemeteries Agency is to be paid from the Cemeteries Agency Fund. 23 Investment of money in Cemeteries Agency Fund The Cemeteries Agency may invest money in the Cemeteries Agency Fund— (a) if the Cemeteries Agency is a GSF agency for the purposes of Part 6 of the Government Sector Finance Act 2018—in any way that the Cemeteries Agency is permitted to invest money under that Part, or (b) if the Cemeteries Agency is not a GSF agency for the purposes of Part 6 of the Government Sector Finance Act 2018—in any way approved by the Minister with the concurrence of the Treasurer. 24 Interment service levies (1) The Cemeteries Agency may levy the following— (a) a contribution towards the cost of the administration of this Act to the extent that it relates to cemeteries (a general levy), (b) in special circumstances, a contribution towards the cost of acquiring particular land under section 14 (a special levy). (2) A general levy or special levy— (a) may be imposed by reference to an interment service of a kind prescribed by the regulations, and (b) may be imposed on any person who is an operator of a cemetery, or an operator of a class of cemetery, prescribed by the regulations, and (c) is to be of an amount, or calculated in the manner, prescribed by the regulations, and (d) is payable in respect of the period prescribed by the regulations, and (e) is to be paid within the time and in the manner specified by the Cemeteries Agency by notice in writing to the person liable to pay the levy. (3) Without limiting subsection (2) (c), the regulations may provide for calculation of a general levy by providing for the determination by the Cemeteries Agency of adjustment of amounts in proportion to variations in the CPI. (4) A special levy under this section must not exceed an amount in total prescribed by the regulations. (5) The regulations may make provision for or with respect to the following— (a) the waiver, reduction, postponement or refund of any levy payable under this section, (b) exempting (whether conditionally or unconditionally) persons or persons of a specified class from a requirement to pay a levy imposed under this section. (6) The Cemeteries Agency is to ensure, as far as is reasonably practicable, that money received from a general levy imposed under this section in relation to its functions with respect to cemeteries is not used to cross-subsidise the expenses of the Cemeteries Agency in carrying out any of its other functions. (7) Nothing in this section prevents a cost of a kind referred to in this section from being covered by a licence fee charged under an interment industry scheme. (8) In this section— CPI means the index known as the Weighted Average of Eight Capital Cities: All Groups Consumer Price Index that is published quarterly by the Australian Statistician. 25 Payment of penalties and fines into the Cemeteries Agency Fund (1) Any monetary penalty or fine imposed for an offence under this Act or the regulations or for the contravention of a civil penalty provision and recovered in proceedings instituted by the Cemeteries Agency is to be paid into the Cemeteries Agency Fund. (2) If the amount paid into the Cemeteries Agency Fund under this section in any financial year exceeds the maximum amount for the financial year, the amount of the excess is to be paid into the Consolidated Fund. (3) The maximum amount for a financial year is $250,000 or, if the regulations make provision for the determination of the maximum amount for the financial year, the maximum amount determined in accordance with those regulations. (4) The regulations may make provision for the determination of the maximum amount for a financial year by prescribing a maximum amount for a financial year or by providing for the manner in which the maximum amount for a financial year is to be determined. (5) Any such regulation may be made only with the approval of the Treasurer. (6) In this section, a reference to proceedings instituted by the Cemeteries Agency includes— (a) a reference to proceedings instituted under the direction or on behalf, or for the benefit, of the Cemeteries Agency, and (b) a reference to a penalty notice or civil infringement notice issued under Part 6 by or under the direction or on behalf of the Cemeteries Agency. (7) In this section— financial year means the period of 12 months commencing on 1 July in any year. fine does not include any costs (including expenses or disbursements) payable by a person under an order made by a court in proceedings for an offence under this Act or the regulations. Part 3 Regulation of interment industry Division 1 Preliminary 26 Definitions In this Act— interment industry means the following— (a) cemetery operators, (b) funeral directors, (c) funeral funds within the meaning of the Funeral Funds Act 1979, (d) any other persons, or persons of a class, prescribed by the regulations. 27 Cemeteries and Crematoria Register (1) The Cemeteries Agency must keep a register of cemeteries and crematoria (the Cemeteries and Crematoria Register). (2) The Cemeteries and Crematoria Register may be kept in the way the Cemeteries Agency decides. (3) A cemetery operator must notify the Cemeteries Agency of the following matters for inclusion on the Cemeteries and Crematoria Register— (a) the name and location of the cemetery or crematorium, (b) the name and address of the cemetery operator, (c) the telephone number of the cemetery or the crematorium or the cemetery operator, (d) any other information required by the regulations to be included in that register. (4) The regulations may make provision for or with respect to the notification by a cemetery operator of information contained in the Cemeteries and Crematoria Register and changes in relation to that information. (5) A cemetery operator must— (a) provide the Cemeteries Agency with any information relating to the cemetery that is required by this section to be included in the Cemeteries and Crematoria Register, and (b) notify the Cemeteries Agency of any material change in the information provided by the cemetery operator for recording in that register within 14 days (or such longer period as the Cemeteries Agency allows) after the change occurs. Maximum civil penalty: $2,200. Note— A reference in this Part to a cemetery operator includes a reference to a crematorium operator—see section 4 (2). (6) The Cemeteries and Crematoria Register must be open for public inspection, without charge, during ordinary business hours. (7) The Cemeteries Agency must, at the request of the Director-General of the Ministry of Health, provide NSW Health with a copy of the Cemeteries and Crematoria Register. Division 2 Codes of practice 28 Codes of practice (1) Codes of practice may be developed and approved by the Cemeteries Agency on its own initiative or in collaboration with all or any participants in the interment industry, or one or more sectors of the interment industry, for the purpose of providing guidance on any interment matter or other matter encompassed by the objects of this Act. (2) Despite subsection (1), the Cemeteries Agency cannot develop and approve a code of practice to the extent it relates to any matter concerning the following— (a) the disposal and handling of human remains (including the cremation of such remains) that is regulated by or under the Public Health Act 2010—without the concurrence of the Minister administering that Act, (b) funeral funds that are regulated by or under the Funeral Funds Act 1979—without the concurrence of the Minister administering that Act, (c) the supply of funeral goods and services that is regulated by or under the Fair Trading Act 1987—without the concurrence of the Minister administering that Act. (3) A code of practice may apply to any one or more of the following— (a) any specified activity or class of activities, (b) all participants in the interment industry or a specified sector of the industry. (4) In developing a code of practice on its own initiative, the Cemeteries Agency must consult with representatives of the participants in the interment industry or specified sector of the industry to whom the code of practice will apply and with any other relevant stakeholders (including, without limitation, the Combined Pensioners and Superannuants Association of NSW). (5) A code of practice may refer to or incorporate, with or without modification, a standard or other document prepared or published by a body specified in the code, as in force at a particular time or from time to time. 29 Nature of codes of practice (1) Except as provided by this section, codes of practice are in the nature of guidelines and compliance is not mandatory. (2) The Cemeteries Agency must, before the end of the period of 5 years after the date of assent to this Act, develop and approve codes of practice under section 28 for the interment industry and compliance with which is intended to be mandatory (a mandatory code of practice). (3) A mandatory code of practice has no effect unless it is incorporated in an interment industry scheme under section 31 (2). (4) A person must comply with any requirement of a mandatory code of practice that applies to the person. Maximum civil penalty: the amount specified in the interment industry scheme not exceeding $27,500. 30 Approval of codes of practice (1) The Cemeteries Agency may approve a code of practice for the purposes of this Act and may vary or revoke an approved code of practice. (2) As soon as practicable after approving a code of practice, or varying or revoking an approved code of practice, the Cemeteries Agency must ensure that notice of the approval, variation or revocation is published in the Gazette. Editorial note— For orders published in the gazette under this subsection, see Gazettes No 328 of 20.11.2020, n2020-4559 and No 384 of 18.12.2020, n2020-4817. From April 2021, PCO is no longer updating notes in provisions of in force titles about related gazette notices. To search for related gazette notices, please use the Gazette Search functionality. (3) An approval of a code of practice, or variation or revocation of an approved code of practice, takes effect when notice of it is given under subsection (2). (4) The Cemeteries Agency must ensure that a copy of each document applied, adopted or incorporated (to any extent) by an approved code of practice is published in the Gazette or is otherwise made available to the public. Division 3 Interment industry schemes 31 Regulations relating to establishment of interment industry schemes (1) The regulations may establish schemes for or with respect to the interment industry (interment industry schemes). (2) Without limiting subsection (1), the regulations establishing an interment industry scheme may make provision for or with respect to the following— (a) requiring compliance with any or all provisions of a code of practice (a mandatory code of practice requirement), (b) requiring an operator of a cemetery to ensure adequate provision is made for perpetual care of interment sites and the cemetery, (c) requiring the licensing of any activity, person, business, premises, vehicle or equipment in relation to the provision of interment services, (d) the imposition of conditions on licences, (e) the suspension or cancellation of licences, (f) appeals, or reviews, by courts, tribunals and other bodies or persons of decisions made under the regulations in relation to licences or applications for the granting of licences, (g) setting fees and charges that are necessary for the funding of the scheme. (3) A person must comply with any requirement of an interment industry scheme that applies to the person. Maximum civil penalty: the amount specified in the interment industry scheme not exceeding $27,500. (4) A regulation may be made under subsection (1) only— (a) with the concurrence of the Minister administering the Public Health Act 2010—if it impacts on an aspect of the disposal and handling of human remains (including the cremation of such remains) regulated by or under that Act, and (b) with the concurrence of the Minister administering the Funeral Funds Act 1979—if it impacts on an aspect of the operation of funeral funds regulated by or under that Act, and (c) with the concurrence of the Minister administering the Fair Trading Act 1987—if it impacts on an aspect of the supply of funeral goods and services for the arrangement and conduct of a funeral regulated by or under that Act. 32 Consultation to be undertaken on regulations establishing interment industry schemes (1) The Minister is to ensure that consultation with participants in the interment industry generally or a sector of the interment industry (and other relevant stakeholders including, without limitation, the Combined Pensioners and Superannuants Association of NSW) is undertaken before the making of any regulation that establishes an interment industry scheme. (2) The provisions of section 5 (Regulatory impact statements) of the Subordinate Legislation Act 1989 apply to a regulation that establishes an interment industry scheme in the same way as they apply to a principal statutory rule (within the meaning of that Act). (3) Consultation is taken to have been undertaken on an interment industry scheme for the purposes of subsection (1) if— (a) notice of the proposed regulation establishing the interment industry scheme has been published in accordance with section 5 (2) (a) of the Subordinate Legislation Act 1989, and (b) consultation on the regulation has taken place in accordance with section 5 (2) (b) of that Act, and (c) comments and submissions received have been appropriately considered in accordance with section 5 (2) (c) of that Act. Division 4 Improvement notices 33 Issue of improvement notice by Cemeteries Agency (1) The Cemeteries Agency may give the operator of a cemetery a notice under this subsection (a preliminary notice) if— (a) the Cemeteries Agency believes on reasonable grounds that this Act or the regulations or a provision of an interment industry scheme have been, or are being, contravened in relation to the cemetery, and (b) the contravention is not an offence against this Act or the regulations. (2) The preliminary notice must— (a) state the contravention and the reasons for the belief, and (b) invite the operator to make written representations, within a stated period of not less than 14 days, why the operator should not be required to end the contravention or remedy the consequences of the contravention, or both. (3) If, after considering any written representations made by the operator within the stated period, the Cemeteries Agency is satisfied that the operator should be required to end the contravention or remedy the consequences of the contravention, or both, the Cemeteries Agency may give the operator a notice under this subsection (an improvement notice). (4) The improvement notice— (a) must require the operator to end the contravention or remedy the consequences of the contravention, or both, within a stated time, and (b) may state the action the operator must take to comply with the notice, and (c) if the notice requires the operator to end the contravention—must state that failure to end the contravention, without reasonable excuse, within the stated time, is a contravention of a civil penalty provision, and (d) if the notice requires the operator to remedy the consequences of the contravention—must state that, if the operator fails to remedy the consequences within the stated time, the Cemeteries Agency may arrange for action to be taken to remedy the consequences and that the operator will be liable for the cost of taking the action. (5) A cemetery operator who is given an improvement notice may appeal to the Tribunal for a review of the decision to give the notice. Note— An appeal under this subsection is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013. 34 Failure to end contravention—civil obligation The operator of a cemetery must not fail to end a contravention of this Act or the regulations or a provision of an interment industry scheme as required by an improvement notice given to the operator within the time stated in the notice. Maximum civil penalty: $27,500. 35 Cemeteries Agency may take action to remedy consequences of contravention (1) If the operator of a cemetery fails to remedy the consequences of a contravention of this Act or the regulations or a provision of an interment industry scheme in accordance with an improvement notice or any additional time allowed by the Cemeteries Agency, the Cemeteries Agency may arrange for the action that it considers necessary or desirable to remedy the consequences to be taken by or on behalf of the State. (2) The reasonable cost of any action taken under this section is a debt due to the Cemeteries Agency payable by the operator. Division 5 Short term orders 36 Making of short term orders (1) The Cemeteries Agency may, by order in writing given to a person who is an operator of a type or of a class of cemetery, or persons who belong to a class of such operators, require the person or persons to take such action or refrain from taking such action as is specified in the order (a short term order). (2) The Cemeteries Agency may make a short term order if it considers the making of the order to be reasonably necessary in the public interest to prevent or lessen a serious threat or risk to the achievement of an object of this Act in the State or any part of the State pending the making of a regulation under section 31 establishing an interment industry scheme that makes provision for a mandatory code of practice requirement. (3) As soon as practicable after making a short term order, the Cemeteries Agency must recommend to the Minister that the regulation referred to in subsection (2) be made as a matter of urgency. (4) A short term order may be made without the concurrence of the Ministers referred to in section 31 (4). 37 Duration of short term orders (1) A short term order takes effect on the day on which the order is given to the person or persons concerned. (2) The Cemeteries Agency may review a short term order on its own initiative or on the application of a person to whom it relates. (3) On a review, the Cemeteries Agency may confirm, vary or revoke the order. (4) A short term order remains in force (unless sooner revoked by the Cemeteries Agency) for the period of 12 months after the day on which it takes effect or until the day the regulation referred to section 36 (2) is made, whichever occurs first. 38 Compliance with short terms orders—civil obligation A person to whom a short term order is given must comply with any requirement imposed on that person by that order. Maximum civil penalty: $27,500. Division 6 Enforceable undertakings 39 Undertakings relating to contraventions of Act, regulations and interment industry scheme (1) This section applies if the Cemeteries Agency considers that an act, or omission, of a person constitutes a contravention of this Act, the regulations or a provision of an interment industry scheme. (2) The Cemeteries Agency may accept any of the following undertakings given by the person— (a) a written undertaking that the person will take specified action, or refrain from taking specified action, in order to comply with the Act, the regulations or the provisions of the interment industry scheme, (b) a written undertaking that the person will take specified action directed towards ensuring that the person does not commit a contravention of the Act, regulations or provision of the interment industry scheme, or is unlikely to commit such a contravention in the future, (c) a written undertaking of a kind specified in the regulations. (3) The person may withdraw or vary the undertaking at any time, but only with the consent of the Cemeteries Agency. (4) The Cemeteries Agency may, by written notice given to the person, cancel the undertaking. (5) The undertaking may be published in the Gazette. 40 Enforcement of undertakings (1) The Cemeteries Agency may apply to the Local Court (or such other court or tribunal as may be prescribed by the regulations) for an order under subsection (2) if— (a) a person has given an undertaking under section 39 that has not been withdrawn or cancelled, and (b) the Cemeteries Agency considers the person has breached the undertaking. (2) If the Local Court (or court or tribunal prescribed by the regulations) is satisfied that the person has breached the undertaking, it may make any or all of the following orders— (a) an order directing the person to comply with the undertaking within a time (if any) specified in the order, (b) an order directing the person to pay to the Cemeteries Agency an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach, (c) any other order that it considers appropriate, including an order directing the person to compensate any other person who has suffered damage or loss as a result of the breach. Division 7 Management of cemetery operators 41 Performance reporting by cemetery and crematorium operators—civil obligations (1) The Cemeteries Agency may, by notice in writing to each cemetery operator concerned, require cemetery operators or cemetery operators of a class described in the notice to report to the Cemeteries Agency on the operators' performance in managing the cemeteries and on such other matters as the Cemeteries Agency considers appropriate. (2) Any such requirement may specify— (a) the intervals at which operators must report to the Cemeteries Agency, and (b) the performance management criteria against which the performance of operators is to be assessed by the Cemeteries Agency. (3) A cemetery operator must comply with any requirement imposed on the operator by a notice under this section. Maximum civil penalty: $9,900. 42 Records—civil obligation A cemetery operator must keep such records (including accounting records) as may be prescribed by the regulations or as may be required by the Cemeteries Agency by notice in writing to the operator. Maximum civil penalty: $9,900. 43 Reports by cemetery and crematorium operators—civil obligations (1) A cemetery operator must provide reports to the Cemeteries Agency in the form, at such times and concerning such matters or specifying such information, as may be required by the Cemeteries Agency by notice in writing to the operator. Maximum civil penalty: $9,900. (2) A cemetery operator must, at the request of the Cemeteries Agency— (a) give the Cemeteries Agency such information as the Agency reasonably requires for the purpose of carrying out the Agency's functions under this Act, and (b) forward to the Cemeteries Agency specified records (including accounting records), or copies of or extracts from specified records, kept by the operator. Maximum civil penalty: $9,900. Part 4 Interment rights Division 1 Preliminary 44 Definitions In this Part— appropriate fee— (a) in relation to a cemetery operator that is a Crown cemetery operator—means the fee determined in relation to a matter by the operator under section 107, and (b) in relation to any other cemetery operator—means a fee determined in relation to a matter by the operator. cemetery operator's register means the register kept by a cemetery operator under section 63. holder of an interment right means the person recorded in the cemetery operator's register in relation to that cemetery as the holder of the interment right. interment of human remains means— (a) the placement of human remains in a mausoleum, vault, columbarium or other structure designed for the placement of such remains, or (b) the burial in the earth of human remains (directly in the earth or in a container). interment right means an interment right granted under this Part. interment site means a place in a cemetery for the interment of human remains. statutory renewal period—see section 48. Division 2 Interment rights Subdivision 1 Preliminary 45 Application of Division (1) Except as provided by subsection (2), Subdivision 3 does not apply to or in respect of, or affect, the following— (a) any burial licence granted under the Crown Lands Act 1989 before the commencement of this section, (b) any right, licence or other entitlement in the nature of an interment right given by contract or other agreement by the person responsible for the management of the affairs of a cemetery before the commencement of this section. (2) A burial licence or other entitlement referred to in subsection (1) is taken on the commencement of this section to be an interment right granted under this Division and if the interment right was granted or given— (a) in perpetuity or without a fixed term—to have been granted or given (on the same terms as it was originally granted or given) as a perpetual interment right, or (b) for a fixed term—to have been granted or given (on the same terms as it was originally granted or given) for the fixed term, the end of which is taken, for the purposes of this Division, to be the end of the statutory renewal period. (3) In the application of this Division to a portion of a cemetery, a reference to a cemetery is taken to include a reference to a portion of a cemetery. (4) This Division does not affect the operation of any regulations under the Public Health Act 2010 relating to cemeteries. Subdivision 2 Interment rights generally 46 Nature of interment right (1) A cemetery operator must— (a) permit the interment of the remains of the person to whom it relates at the site in a cemetery identified in, or in accordance with, the interment right, and (b) permit the interment in accordance with the cultural or religious practice applicable to the part of the cemetery in which the interment site is located at the time the interment right is granted, and (c) permit a memorial to the deceased person to be erected at the site with the approval of the cemetery operator, and (d) leave the remains undisturbed in perpetuity (or, in the case of a renewable interment right, until such time as the remains may be disturbed or removed in accordance with this Act) unless disturbance or removal at an earlier time is requested or authorised by the holder of the interment right, and (e) leave any memorial to the deceased person lawfully erected at that site, with the permission of the cemetery operator, undisturbed (provided the interment right remains in force and the memorial is kept in good repair) until such time as the memorial may be disturbed in accordance with this Act unless disturbance at an earlier time is requested or authorised by the holder of the interment right. (2) A cemetery operator must comply with the requirements of subsection (1) (d) and (e). Maximum civil penalty: $27,500. (3) Subject to the regulations, a cemetery operator must ensure that any remains of a person that are disturbed or removed are dealt with in accordance with any cultural or religious practices applicable to the remains. 47 Types of interment right The cemetery operator may grant an interment right entitling the person or persons to whom it is granted the exclusive right of interment in a specified interment site— (a) in perpetuity (a perpetual interment right), or (b) for the period an interment right granted under section 54 remains in force (a renewable interment right). 48 Duration of interment right An interment right remains in force— (a) if it is a perpetual interment right—in perpetuity, and (b) if it is a renewable interment right—until the end of the period commencing on the day on which the interment right is granted and ending on the day the interment right expires under section 54 (the statutory renewal period). 49 Interment rights may be bequeathed (1) The holder of an interment right may (subject to section 51) bequeath the right as if it were the holder's personal estate. (2) A person to whom an interment right devolves as a result of a bequest does not become the holder of the right until the cemetery operator's register is amended to indicate that fact. (3) On application made by a person to whom an interment right has devolved as a result of a bequest, the cemetery operator must amend the cemetery operator's register so as to indicate that the person has become the holder of the interment right. (4) An application under this section must be in the form prescribed by the regulations or approved by the Cemeteries Agency and accompanied by the appropriate fee. (5) The executor or administrator (within the meaning of the Probate and Administration Act 1898) of the estate of the holder of an interment right who has bequeathed the interment right must give the relevant cemetery operator written notice of the death of the holder within the period prescribed by the regulations after the executor or administrator becomes aware of the death. 50 Rules of intestacy to apply to interment rights not bequeathed (1) If the holder of an interment right dies and has not bequeathed the interment right, the interment right is to be dealt with as if it were personal property forming part of the estate of an intestate. (2) A person to whom an interment right devolves as a result of intestacy does not become the holder of the interment right until the relevant cemetery operator's register is amended to indicate that fact. (3) On application made by a person to whom an interment right has devolved as a result of intestacy, the cemetery operator must amend the relevant cemetery operator's register so as to indicate that the person has become the holder of the interment right. (4) An application under this section must be in the form prescribed by the regulations or approved by the Cemeteries Agency and accompanied by the appropriate fee. 51 Interment right to pass to surviving joint holder On the death of a joint holder of an interment right, the remaining joint holder is, or joint holders are, entitled to the interment right. 52 Revocation of perpetual interment rights (1) A cemetery operator may revoke a perpetual interment right that the cemetery operator, or any previous cemetery operator for the cemetery concerned, has granted if the right conferred by the perpetual interment right is not exercised within 50 years after it is granted. (2) Before revoking a perpetual interment right under this section, the cemetery operator must cause notice of its intention to do so to be sent, by registered post, to the person (if any) shown in the relevant cemetery operator's register as the holder of the perpetual interment right. (3) If no response to the notice under subsection (2) is received within 28 days after the date on which it is sent, the cemetery operator is to cause a further notice of the intention to be sent, by registered post, to each person shown in the relevant cemetery operator's register as a secondary contact with respect to the holder. (4) If no response to the notice under subsection (2) or (3) is received within 28 days after the date on which it is sent, a second notice of the cemetery operator's intention is to be given by means of an advertisement, identifying the interment site and the name of the holder— (a) displayed in a prominent position at the crematorium, cemetery or portion of a cemetery concerned, and (b) published in the Gazette and in— (i) a newspaper circulating throughout the State, or (ii) a manner approved in writing by the Minister having regard to the object of bringing notices of that kind to the attention of the holders of the relevant interment rights or (where holders have died) any persons entitled to the relevant interment rights as the result of bequests or intestacy or as surviving joint holders. (5) If no response to the second notice is received within 6 months after the date on which it is advertised, final notice of the cemetery operator's intention is to be sent, by registered post, to the person (if any) shown in the register as the holder of the perpetual interment right allowing the holder 28 days from the date of the final notice within which to enter into negotiations of the kind referred to in subsection (7). (6) If the cemetery operator has insufficient information to properly address the notice referred to in subsection (2) or (5), the operator is not required to send that notice but may in that case begin the notification process by means of the notice referred to in subsection (4) and may take any other notification action the operator considers appropriate. (7) At any time before the expiry of the period for responding to the final notice referred to in subsection (5) (or, in the circumstances referred to in subsection (6), within 28 days after the last date on which an advertisement referred to in subsection (4) (b) is published) the holder of the perpetual interment right concerned may enter into negotiations with the cemetery operator for— (a) the sale of the perpetual interment right, or (b) the retention of the perpetual interment right. (8) Any notice required to be displayed or published under this section may relate to more than one interment site. 53 Compensation (1) If a cemetery operator revokes the perpetual interment right for an interment site the former holder of that interment right is entitled to one or other of the following at the election of the cemetery operator (but no other compensation or entitlement with respect to the revocation)— (a) to be granted a perpetual interment right for an alternative interment site in the same cemetery (and, if available, in the same general location) as the original interment site, (b) to be paid by the cemetery operator, by way of compensation, an amount equal to half of the fee payable (as provided by the cemetery operator's current scale of fees) for the granting of a perpetual interment right for an alternative interment site in the same cemetery (and, if available, in the same general location) as the original interment site. (2) If there is no alternative interment site available, or if there is no applicable scale of fees, the amount of compensation referred to in subsection (1) (b) is to be half of the fee payable for the granting of an interment right under the most recent applicable scale of fees, varied in proportion to any variation in the Consumer Price Index (All Groups Index) for Sydney that has occurred between the date on which that scale was established and the date of revocation of the interment right. (3) A cemetery operator must ensure that any report on its accounts contains an estimate of its contingent liability with respect to any interment rights it has revoked. (4) (Repealed) (5) Despite section 58 (Transfer of interment right to a person other than cemetery operator), if the former holder of the revoked interment right is granted an interment right for an alternative interment site, that interment right may not be transferred by the former holder within 5 years after the date on which it was granted. (6) An application for an entitlement under this section— (a) must be in the form approved by the Cemeteries Agency, and (b) must be accompanied by the appropriate fee, and (c) must be lodged with the cemetery operator within 6 years after the date on which the relevant interment right was revoked. Note— Pursuant to section 107 (8) the fee referred to in paragraph (b) if set by a Crown cemetery operator is subject to variation or disallowance by the Cemeteries Agency. (7) A former holder of a revoked interment right may apply to the Cemeteries Agency for a review of any election of the cemetery operator under this section. (8) The Cemeteries Agency's decision on such a review— (a) is final, and (b) is taken to be the decision of the cemetery operator, and (c) is to be given effect to accordingly. (9) In this section, former holder of a revoked interment right means the person who held that right immediately before it was revoked. Subdivision 3 Renewable interment rights 54 Grant and renewal of renewable interment rights (1) Grant of right for initial term A cemetery operator, on application and payment of the appropriate fee, may grant to one person (or to two or more persons as joint holders) a renewable interment right in relation to a specified interment site in the cemetery— (a) for the interment of human remains of the person or persons to whom the right relates after they have been cremated (cremated remains)—for an initial term of up to 99 years commencing on the day it is granted, and (b) for the interment of human remains (other than cremated remains) of the person or persons to whom the right relates—for an initial term of 25 years commencing on the day it is granted. (2) A renewable interment right must not be granted in a portion of a cemetery consecrated for use by a religious or cultural group that requires perpetual interment. (3) Renewal of right on application The cemetery operator, on application and payment of the appropriate fee— (a) must renew an interment right that is due to expire within 12 months for a further consecutive term of at least 5 years that when aggregated with the initial term and any further terms of renewal does not exceed 99 years, and (b) may, if the application is made on or after an interment of the human remains of a person to whom the right relates, renew that right for a further consecutive term of at least 5 years agreed with the holder of the right that when aggregated with the initial term and any further terms of renewal does not exceed 99 years, (c) must, if the application is made within 6 months after the day on which an interment of the human remains of a person to whom the right relates occurs, renew that interment right for a further consecutive term of at least 5 years that when aggregated with the initial term and any further terms of renewal does not exceed 99 years. (4) Notice requirements concerning fees The grant or renewal of a renewable interment right has no effect unless the cemetery operator gives the applicant for the grant or renewal notice of the rights to renew the renewable interment right under subsection (3) (a) and (c) on payment of a fee and the manner in which the fee will be calculated. (5) A renewable interment right expires if it is not renewed before the end of a term for which it is granted or renewed under this section. (6) Subject to the regulations, a cemetery operator must, at least 12 months before a renewable interment right granted by the cemetery operator is due to expire, take reasonable steps to give the holder or holders of the renewable interment right and any person shown in the relevant cemetery operator's register as a secondary contact with respect to the holder written notice setting out the entitlement (if any) to apply to renew the right and the fee for doing so. (7) A person who is the holder of a renewable interment right that has expired, or to whom such a right relates, may apply for a new renewable interment right in relation to the interment site to which the expired renewable interment right relates no later than 2 years after the expiry. (8) The regulations may— (a) prescribe a different period of any term of a renewable interment right to a period specified in subsection (1) or (3), and (b) prescribe the matters which a cemetery operator must disclose to an applicant for a renewable interment right, and (c) make provision for or with respect to a cooling off period prescribed by the regulations for the taking of effect of an interment right, and (d) without limiting paragraph (c), provide for the waiver of the cooling off period in circumstances prescribed by the regulat