Tasmania: Burial and Cremation Act 2019 (Tas)

Burial and Cremation Act 2019 An Act to make provision for the establishment and management of cemeteries and crematoria, to provide for, and regulate, the handling and storage of human remains and to repeal the Burial and Cremation Act 2002 [Royal Assent 13 December 2019] Be it enacted by Her Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Burial and Cremation Act 2019 . 2. Commencement The provisions of this Act commence on a day or days to be proclaimed. 3. Interpretation (1) In this Act, unless the contrary intention appears – Aboriginal cremation means the cremation of an Aboriginal person, within the meaning of the Aboriginal Lands Act 1995 , that is performed in accordance with Aboriginal custom on Aboriginal land; Aboriginal land has the same meaning as in the Aboriginal Lands Act 1995 ; approved form means a form approved by the regulator; authorised officer includes – (a) a regulator; and (b) a State Service employee who is authorised in writing by the regulator, or the Director of Public Health, as an authorised officer for the purposes of this Act; and (c) an officer or employee of a council who is authorised, in writing by the council, as an authorised officer for the purposes of this Act; and (d) a police officer; and (e) a person, or class of persons, prescribed as an authorised officer; cemetery means – (a) a place that has been – (i) approved, under the Land Use Planning and Approvals Act 1993 , for the interment of human remains; and (ii) lawfully used for the interment or placement of human remains; or (b) a place that is, or was, lawfully used for the interment or placement of human remains; or (c) a place, land or structure, or a class of places, land or structures, prescribed as a cemetery – but does not include any land on which there is an interment permitted under section 29 ; cemetery manager, in relation to a cemetery, means the person – (a) approved under this Act to manage the cemetery; or (b) deemed, under this Act, to be the cemetery manager for the cemetery; closed cemetery – see section 4 ; contravene includes fail to comply with; council means a council established under section 18 of the Local Government Act 1993 ; cremated remains means the remains that are the result of the cremation of human remains; cremation means the reduction of human remains – (a) to ash by a process involving the application of heat or flame, or by any other means approved by the Minister having the administration of the Public Health Act 1997 ; or (b) by a prescribed means; crematorium means premises that have been approved, under the Land Use Planning and Approvals Act 1993 , for the purpose of cremations and includes any other premises that, immediately before the commencement of this definition, were approved for that purpose under the Burial and Cremation Act 2002 ; crematorium manager, in relation to a crematorium, means the person approved under this Act to manage the crematorium; Director of Local Government means the Director within the meaning of the Local Government Act 1993 ; Director of Public Health means the person appointed as the Director of Public Health under the Public Health Act 1997 ; environmental health officer means an environmental health officer appointed under section 10 or 11 of the Public Health Act 1997 ; exclusive right of burial means an exclusive right of burial referred to in section 41 ; exhumation means the removal of human remains from where the remains are interred but does not include the reopening of a place where human remains are interred if the human remains are not removed from that place; fit and proper, in relation to a person – see section 5 ; human remains means – (a) the body of a deceased person and includes a part of a body of a deceased person; or (b) a detached part of a person who is not deceased – but does not include cremated remains; interment includes – (a) the burial of human remains, or cremated remains, in the ground; and (b) the placement of human remains, or cremated remains, as mentioned in section 8(2) ; and (c) the placement of human remains, or cremated remains, as prescribed; mausoleum means a structure – (a) that is designed to hold one or more vaults for the interment of human remains that have not been cremated; and (b) in which at least one vault (excluding a memorial attached to the vault) is wholly above the surface of the ground or protrudes at least 150 millimetres above the surface of the ground; monument includes a tombstone, plaque, tablet, cenotaph, columbarium and any other structure or object – (a) that is located in a cemetery and – (i) is intended to commemorate a deceased person; or (ii) contains human remains or cremated remains; or (b) that – (i) is located in a place that is, or has previously been, open for public access; and (ii) contains human remains, or cremated remains; offer for sale includes display, or expose, for sale; plot includes a place in a mausoleum that is set aside for the placement of human remains; regulated business means a business for – (a) the handling, storage or transport of human remains; or (b) the preparation of human remains for interment or cremation – but does not include such a business that is carried on – (c) in accordance with the Anatomical Examinations Act 2006 ; or (d) in connection with a hospital or nursing home; or (e) as incidental to the donation of human remains; regulator – see section 9 ; relevant organisation means – (a) in relation to a cemetery manager, the cemetery that the cemetery manager is approved to manage; or (b) in relation to a crematorium manager, the crematorium that the crematorium manager is approved to manage; or (c) in relation to a person approved to carry on a regulated business, the regulated business; religious or cultural practice means a rite or practice pertaining to religious or cultural ceremonies relating to the mourning process, including interment and cremation of human remains, or a similar ceremony approved by the Director of Public Health; sell includes any of the following, whether by wholesale or retail: (a) barter or exchange; (b) deal in or agree to sell; (c) offer for sale; (d) supply for, in expectation of receiving, payment or consideration; (e) receive for sale; (f) dispose of by way of raffle, lottery or other game of chance; (g) offer as a gift, other than to offer as a gift to a religious or cultural group in accordance with this Act; (h) offer as a prize or reward; (i) give away for any purpose; senior next of kin – see section 6 ; spouse includes the other party to a significant relationship, within the meaning of the Relationships Act 2003 . (2) A reference in this Act to a council is to be read as a reference to the council of the municipal area in which – (a) a crematorium or cemetery is situated or proposed to be situated; or (b) it is proposed to inter human remains as mentioned in section 29 . 4. Meaning of closed cemetery (1) For the purposes of this Act, a cemetery is a closed cemetery if the cemetery – (a) immediately before the commencement of this section, was a closed cemetery within the meaning of the Burial and Cremation Act 2002 ; or (b) was closed under section 63 and a notice under that section remains in effect in respect of the cemetery; or (c) was approved to be closed under section 65 ; or (d) meets the prescribed criteria for a closed cemetery. (2) For the avoidance of doubt, a closed cemetery is still a cemetery for the purposes of this Act unless – (a) all human remains have been removed from the closed cemetery as required under section 72(1) ; or (b) the land is declared under section 73 not to be a cemetery. 5. Meaning of fit and proper (1) The regulator may take into account the following matters when determining, for the purposes of this Act, if a person is a fit and proper person: (a) the capacity, including the financial capacity, of the person including his or her ability to maintain, if relevant, a regulated business, cemetery or crematorium, and the related records; (b) the capacity of the person to comply with the relevant provisions of this Act; (c) whether the person has any previous relevant experience in the management and maintenance of a regulated business, cemetery or crematorium and, if so, the details of that experience; (d) whether the person has been found guilty of one of the following offences within the immediately previous 10 years, regardless of where the conviction occurred: (i) an indictable offence where the maximum penalty for the offence is a term of imprisonment of at least 3 months; (ii) an offence of dishonesty, fraud, or trafficking, where the maximum penalty for the offence is a term of imprisonment of at least 3 months; (e) whether or not any allegations of misconduct, relevant to the management or operation of a regulated business, cemetery or crematorium, have been made against the person, regardless of the jurisdiction in which the allegation was made; (f) any other prescribed matter; (g) any other matter, in respect of the person, that the regulator considers relevant to the determination. (2) If the regulator is required to determine, for the purposes of this Act, if a body corporate is a fit and proper person, subsection (1) applies to that determination as if a reference in that subsection to a person were a reference to each officer of that body corporate. 6. Meaning of senior next of kin (1) Subject to subsection (4) , a person is the senior next of kin in relation to a deceased person, including the cremated remains of the deceased person, for the purposes of this Act, if – (a) the person is the executor or administrator of the estate of the deceased person, if the administration of the estate is not complete; or (b) if there is no person within paragraph (a) in respect of the deceased person – the person was the spouse of the deceased person immediately before the death of the deceased person; or (c) if there is no person within paragraph (a) or (b) in respect of the deceased person – the person is the deceased person's eldest available child, within the meaning of section 3(13) of the Evidence Act 2001 , if that child has attained the age of 18 years; or (d) if there is no person within paragraph (a) , (b) or (c) in respect of the deceased person – the person was in a caring relationship, within the meaning of the Relationships Act 2003 , with the deceased person immediately before the death of the deceased person; or (e) if there is no person within paragraph (a) , (b) , (c) or (d) in respect of the deceased person – the person is a parent of the deceased person; or (f) if there is no person within paragraph (a) , (b) , (c) , (d) or (e) in respect of the deceased person – the person is the eldest available sibling of the deceased person, if that sibling has attained the age of 18 years; or (g) if there is no person within paragraph (a) , (b) , (c) , (d) , (e) or (f) in respect of the deceased person – the person is the personal representative of the deceased person; or (h) if – (i) there is no person within paragraph (a) , (b) , (c) , (d) , (e) , (f) or (g) in respect of the deceased person; and (ii) the deceased person is an Aboriginal person within the meaning of the Aboriginal Lands Act 1995 – the person is a person who is an appropriate person according to the customs and traditions of the community or group to which the deceased person belonged; or (i) if there is no person within paragraph (a) , (b) , (c) , (d) , (e) , (f) , (g) or (h) in respect of the deceased person – the person is a person approved under subsection (3) as the senior next of kin of the deceased person. (2) For the purposes of subsection (1) or (3) , there is no person within the paragraph in respect of a deceased person, or a person referred to in the paragraph is not available, if the person referred to in that paragraph – (a) is unable to be contacted after all reasonable steps to contact the person have been taken; or (b) has declined to act as the senior next of kin of the deceased person; or (c) is, in the opinion of a medical practitioner, unable to perform adequately, or competently, the duties of senior next of kin. (3) For the purposes of subsection (1)(i) , the regulator may approve, by notice in writing to a person, that person as the senior next of kin of the deceased person. (4) Despite subsection (1) , a reference to senior next of kin in respect of human remains, or cremated remains, of a person who is not yet deceased is taken to be a reference to the person if the person has legal capacity. 7. Crown to be bound This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities, but not so as to impose criminal liability on the Crown. 8. Application and non-application of Act (1) This Act – (a) is in addition to, but does not derogate from, any other Act relating to any matter in this Act; and (b) does not apply to the exclusion of any other Act providing for – (i) the use of land as a crematorium or cemetery; or (ii) the use of any disused burial ground or land formerly used as a cemetery. (2) For the avoidance of doubt, this Act applies to the placement of human remains, or cremated remains, in any place that is approved in accordance with the Land Use Planning and Approvals Act 1993 for use as a mausoleum and, for the purposes of this Act, human remains, or cremated remains, that have been so placed are taken to be interred. (3) This Act, other than sections 23 , 28 and 30 , does not apply to the Settlement Point cemetery shown on Plan 4806 in the Central Plan Register. PART 2 - Administration Division 1 - Regulator 9. Regulator (1) For the purposes of this Act or a provision of this Act, a person is the regulator if – (a) the person prescribed as the regulator for the purposes of this Act or the provision; or (b) if no such person is prescribed for this Act or the provision, the Director of Local Government. (2) In this Act, a reference to the regulator in respect of a regulated business, cemetery or crematorium is a reference to the regulator appointed for the provision of the Act in which the reference occurs. 10. Regulator may issue exemptions (1) Subject to subsection (2) and section 11 , the regulator may exempt a person from complying with one or more requirements of this Act if satisfied that the exemption – (a) is reasonable in the circumstances; and (b) does not have a negative effect on the entitlements of another person under this Act. (2) The regulator may not exempt a person from a requirement in the following sections: (a) section 25 ; (b) section 32(1) and (4) ; (c) section 43 ; (d) section 44(1) and (5) ; (e) section 50 ; (f) section 51 ; (g) section 52(1)(c) ; (h) section 54(1) ; (i) section 58(3) ; (j) section 59 ; (k) section 60 ; (l) section 61 ; (m) section 74 ; (n) any other prescribed provision. 11. Regulator may accept partial compliance in certain circumstances (1) The regulator may accept partial compliance with a requirement under this Act for a person to keep a record if – (a) the person has made all reasonable attempts to get the information required to be kept under this Act as part of the record; and (b) the person is unable to find the information; and (c) the regulator is satisfied that the person required to keep the record has made all reasonable attempts to comply with this Act in respect of the record. (2) The regulator may accept partial compliance under subsection (1) on his or her own initiative or on the application of the person who is required to keep the record under this Act. 12. Regulator may delegate (1) A regulator may, by written instrument, delegate the performance of his or her functions, or the exercise of his or her powers, under this Act, other than this power of delegation. (2) A regulator may, by written instrument, revoke wholly or in part any such delegation. (3) Notwithstanding any delegation under this section, a regulator may continue to exercise all or any of the functions or powers delegated. (4) An instrument purporting to be signed by a delegate of a regulator in his or her capacity as such a delegate may in all courts and before all persons acting judicially be received in evidence as if it were an instrument executed by the regulator and, until the contrary is proved, is taken to be an instrument signed by a delegate of that regulator under this section. 13. Regulator may issue directions (1) A regulator may issue a written direction to a person carrying on a regulated business, or a cemetery manager or a crematorium manager, specifying the steps to be taken by the person to ensure compliance with this Act if the regulator is not satisfied that – (a) the person has complied with this Act; or (b) the relevant organisation managed by the person does not comply with this Act. (2) A person who is issued with a written direction under subsection (1) must comply with the written direction within the period specified in the direction. Penalty: Fine not exceeding 100 penalty units. 14. Regulator to keep register (1) The regulator is to maintain a register of information in respect of each of the following organisations within the State: (a) regulated businesses; (b) cemeteries; (c) crematoria. (2) An entry in the register kept under subsection (1) in relation to a regulated business is to include, but is not limited to, the following information: (a) the name and address of each regulated business; (b) if the manager or person responsible for carrying on the regulated business is – (i) a natural person, the full name and address of that person; or (ii) a body corporate, the full name and address of that body corporate and of a director, secretary or public officer of that body corporate; (c) the business name, if any, under which the regulated business is carried on. (3) An entry in the register kept under subsection (1) in relation to a cemetery or crematorium is to include, but is not limited to, the following information: (a) the name and address of the cemetery or crematorium; (b) the full name and business address of – (i) in the case of a cemetery, the cemetery manager for the cemetery; or (ii) in the case of a crematorium, the crematorium manager for the crematorium; (c) the business name, if any, under which the cemetery or crematorium is managed; (d) a means of identifying the area of land used for the cemetery or crematorium. (4) If an entry in the register is incorrect, incomplete or missing, the following person in respect of the entry must, as soon as is practicable after becoming aware that the information is incorrect, incomplete or missing, notify the regulator of that fact and provide the full, correct information: (a) if the entry relates to a regulated business, the person approved to carry on the regulated business; (b) if the entry relates to a cemetery, the cemetery manager for the cemetery; (c) if the entry relates to a crematorium, the crematorium manager for the crematorium. Penalty: Fine not exceeding 30 penalty units. (5) The register – (a) may be kept in any form that permits its contents to be readily inspected in a legible form; and (b) must be made available for viewing by members of the public; and (c) is to be made so available to the public by any means, or in any form, that the regulator considers appropriate. 15. Extension of certain periods relating to applications determined by regulator (1) If this Act requires the regulator to determine an application within a specific period and the regulator has requested further information in respect of the application, the specified period is exclusive of any time between – (a) the regulator requesting the information; and (b) the regulator receiving all of the requested information. (2) If this Act requires the regulator to determine an application within a specific period, the regulator may, by notice in writing to the applicant, extend the specified period for such further period as is specified in the notice. Division 2 - Authorised officers 16. Powers of authorised officers to enter premises (1) For the purpose of ascertaining whether there is, or has been, a contravention of this Act, an authorised officer may enter – (a) any place or premises that are, have been or may be used for, or in connection with, a regulated business or any cemetery or crematorium; or (b) any other place or premises in which the authorised officer has reason to believe records relating to a regulated business, cemetery or crematorium are kept. (2) An authorised officer may only enter a regulated business, cemetery, crematorium, or another place or premises under subsection (1) – (a) at a reasonable time; and (b) after providing reasonable notice to the person carrying on the regulated business, the cemetery manager, the crematorium manager or the person responsible for the management of the other place or premises. (3) Despite subsections (1) and (2) , an authorised officer may only enter, under subsection (1) , part of a place, or premises, in which a person ordinarily resides if the authorised officer – (a) is authorised to so enter by a warrant issued by a justice of the peace; or (b) is given permission to enter by the occupier of the residence. (4) On entering and on leaving the place or premises, an authorised officer must ensure that they are as effectively secured against trespassers as the authorised officer found them. (5) An authorised officer may use reasonable force to enter on land or enter a building or structure on land – (a) if the force used is authorised by a warrant issued by a justice of the peace; or (b) if the officer believes, on reasonable grounds, that the circumstances require immediate action to be taken. (6) A justice of the peace must not issue a warrant authorising the use of force under subsection (5) unless satisfied, on information given on oath – (a) that there are reasonable grounds to suspect that an offence against this Act has been, is being, or is about to be, committed; or (b) that the warrant is reasonably required in the circumstances. 17. Collection of evidence by authorised officers (1) An authorised officer who enters any cemetery, crematorium, place or premises for the purposes of this Act, may do any one or more of the following to determine if the Act has been, is being, or is likely to be, contravened: (a) search the cemetery, crematorium, place or premises; (b) require any person to produce a record, document or other thing for inspection by the authorised officer; (c) take extracts from, or make copies of, a record, document or thing; (d) take photographs, films and video recordings; (e) take samples of things for analysis; (f) take into the cemetery, crematorium, place or premises any equipment or materials reasonable necessary for the purpose of the authorised officer exercising a power, or performing a function, under this Act; (g) require any person to give the authorised officer any reasonable assistance that the authorised officer may require. (2) If an authorised officer has a reasonable belief that this Act has been, is being, or is likely to be, contravened, the authorised officer may seize any record, document or other thing relevant to the contravention. 18. Retention of records, &c., by authorised officers (1) An authorised officer may retain a record, document or other thing seized under this Act – (a) for the purpose of investigating if this Act has been, is being, or is likely to be, contravened and, if required, for the purposes of any subsequent prosecution; or (b) for the purpose of an investigation under Part 5 of the Coroners Act 1995 . (2) An authorised officer who retains a record, document or other thing under subsection (1) may provide it, or a copy of it, to a regulator – (a) for the purpose of investigating if this Act has been, is being, or is likely to be, contravened and, if required, for the purposes of any subsequent prosecution; or (b) for the purpose of an investigation under Part 5 of the Coroners Act 1995 . (3) If an authorised officer provides a record, document or other thing, or a copy of a record, document or other thing, to a regulator under subsection (2) , the regulator may retain it, or a copy of it, while required for the purpose referred to in that subsection. (4) A person otherwise entitled to possession of a record or document, retained by an authorised officer under this Act, is entitled to be provided with a copy of that record, or document, certified by the authorised officer to be a true copy, if the person requests such a copy from the authorised officer. (5) A certified copy of a record or document provided under subsection (4) is to be received in all courts and elsewhere as if it were the original record or document. 19. Authorised officers not to impede business An authorised officer performing a function or exercising a power under this Act, or a person assisting such an authorised officer, must not unnecessarily impede or obstruct the operation of a regulated business, cemetery, crematorium or any place or premises that are, have been or may be used for, or in connection with, a regulated business, cemetery or crematorium. Division 3 - General 20. Director of Public Health may issue directions (1) If the Director of Public Health considers it in the interest of public health or public safety to do so, the Director may make a direction, in writing, in respect of one or more of the following: (a) the handling and disposal of human remains; (b) the carrying on of a regulated business; (c) the management of a cemetery or crematorium; (d) any other prescribed matter. (2) A person to whom a direction under subsection (1) applies must comply with the direction. Penalty: Fine not exceeding 100 penalty units. 21. Director of Public Health may delegate (1) The Director of Public Health may, by written instrument, delegate the performance of his or her functions, or the exercise of his or her powers, under this Act, other than this power of delegation, to an environmental health officer or to a person employed as an environmental health officer by a council. (2) The Director of Public Health may, by written instrument, revoke wholly or in part any such delegation. (3) Notwithstanding any delegation under this section, the Director of Public Health may continue to exercise all or any of the functions or powers delegated. (4) An instrument purporting to be signed by a delegate of the Director of Public Health in his capacity as such a delegate may in all courts and before all persons acting judicially be received in evidence as if it were an instrument executed by that Director and, until the contrary is proved, is taken to be an instrument signed by a delegate of that Director under this section. PART 3 - Handling of Human Remains Division 1 - General 22. Notifications of death (1) If a person reasonably believes that another person has died, he or she is to notify at least one of the following persons of that death as soon as practicable: (a) a medical practitioner; (b) a police officer; (c) a nurse; (d) a midwife; (e) an officer of the Ambulance Service within the meaning of the Ambulance Service Act 1982 ; (f) a prescribed person. (2) If a person other than a medical practitioner is notified of a death under subsection (1) , the person so notified is to notify a medical practitioner of that death as soon as is practicable. (3) Subsection (1) or (2) does not apply to a person if – (a) the person is required, under either subsection, to give notification of a death; and (b) the person is satisfied, on reasonable grounds, that another person has given notification of the death under that subsection. 23. Unlawful disposal of human remains A person must not dispose of any human remains except in accordance with – (a) this Act or any other Act; and (b) any conditions which may be imposed by the Director of Public Health under Division 3 . Penalty: Fine not exceeding 100 penalty units or imprisonment for a term not exceeding 2 years, or both. 24. Handling of human remains Each person carrying on a regulated business, cemetery manager and crematorium manager must ensure that, at all times, human remains and cremated remains held at the premises of the relevant organisation are – (a) stored and labelled – (i) so as to enable the human remains or cremated remains to be clearly identified; and (ii) in accordance with the relevant prescribed requirements, if any; and (b) held in a manner that is secure; and (c) handled in a manner that is respectful. Penalty: Fine not exceeding 50 penalty units and a further fine not exceeding 5 penalty units in respect of each day during which the offence continues. Division 2 - Regulated businesses 25. Person must be approved to carry on regulated business A person must not carry on a regulated business unless the person – (a) has been approved in accordance with this Act to carry on that regulated business; and (b) is carrying on the regulated business in accordance with the approval; and (c) has not been prohibited under section 93 from carrying on a regulated business. Penalty: Fine not exeeding 50 penalty units and a further fine not exceeding 5 penalty units in respect of each day during which the offence continues. 26. Approval to carry on regulated business (1) A person who proposes to carry on a regulated business must apply to the regulator for approval to carry on that business. (2) An application under subsection (1) – (a) is to be in an approved form; and (b) must be made to the regulator at least one calendar month before the person intends to carry on the regulated business; and (c) must be accompanied by the prescribed fee if any. (3) In determining an application under subsection (1) , the regulator may take into account any one or more of the following matters: (a) if the applicant is a natural person – (i) whether the applicant has been convicted of an offence under this Act, the Cremation Act 1934 , the Burial and Cremation Act 2002 or Part 4 of the Local Government (Building and Miscellaneous Provisions) Act 1993 ; or (ii) whether the applicant is or is not, in the opinion of the regulator, a fit and proper person to carry on the regulated business; (b) if the applicant is a body corporate – (i) whether a person concerned in the management of the body corporate has been convicted of an offence under this Act, the Cremation Act 1934 , the Burial and Cremation Act 2002 or Part 4 of the Local Government (Building and Miscellaneous Provisions) Act 1993 ; or (ii) whether any such person is or is not, in the opinion of the regulator, a fit and proper person to carry on the regulated business; (c) any other matter prescribed for the purposes of this section. (4) Within 21 days after receipt of an application under subsection (1) , the regulator is to – (a) approve the applicant to carry on a regulated business subject to any conditions that the regulator considers appropriate; or (b) refuse to approve the applicant to carry on a regulated business; or (c) request further information from the applicant and, after considering the further information – (i) approve the applicant to carry on a regulated business subject to any conditions that the regulator considers appropriate; or (ii) refuse to approve the applicant to carry on a regulated business. (5) As soon as practicable after making a decision under subsection (4) in respect of an application, the regulator is to notify an applicant of that decision. (6) A decision of the regulator under subsection (4) is a reviewable decision for the purposes of the Magistrates Court (Administrative Appeals Division) Act 2001 . 27. Carrying on regulated business (1) A person must not carry on a regulated business other than – (a) in accordance with this Act; and (b) in a manner which is not, or may not be, prejudicial to public health or public safety. Penalty: Fine not exceeding 50 penalty units and a further fine not exceeding 5 penalty units in respect of each day during which the offence continues. (2) A person carrying on a regulated business must keep all prescribed records, in the prescribed manner, in respect of the business. Penalty: Fine not exceeding 50 penalty units. Division 3 - Other handling of human remains 28. Use of land for Aboriginal cremations (1) A person may only conduct an Aboriginal cremation in accordance with this section. (2) A person who wishes to conduct an Aboriginal cremation must apply, in writing, to – (a) the Aboriginal Land Council of Tasmania, as established under the Aboriginal Lands Act 1995 , for approval to use the Aboriginal land specified in the application for the purposes of an Aboriginal cremation; and (b) the Director of Public Health for approval to use Aboriginal land for the purposes of an Aboriginal cremation. (3) On receipt of an application under subsection (2)(b) , the Director of Public Health is to consult with the general manager of the council of the municipal area in which the land is situated. (4) The Director of Public Health must not give approval for the use of Aboriginal land for the purpose of an Aboriginal cremation unless the Director is satisfied that the person who wishes to conduct the Aboriginal cremation has obtained the approval of the Aboriginal Land Council under subsection (2)(a) for that use. (5) Unless otherwise stated, this Act does not apply to – (a) an Aboriginal cremation performed in accordance with this section; or (b) the handling of cremated remains that – (i) are the result of an Aboriginal cremation; and (ii) are being handled in accordance with Aboriginal custom. 29. Interment of human remains otherwise than in cemetery (1) A person may only inter human remains other than in a cemetery with the written permission of – (a) the landholder; and (b) the Director of Public Health; and (c) the general manager of the relevant council. (2) The Director of Public Health must not give permission for the purposes of this section if the Director of Public Health believes, on reasonable grounds, that the land on which the proposed interment is to occur would be considered a cemetery to which this Act applies. (3) The general manager must not give permission for the purposes of this section unless – (a) the Director of Public Health has given written permission for the proposed interment; and (b) the general manager is satisfied, on reasonable grounds, that the land on which the proposed interment will occur is not a cemetery to which this Act applies. (4) If the general manager gives permission for an interment under this section, the general manager must ensure that a record of the proposed interment – (a) is kept by the council; and (b) is shown on any certificate issued by the council under section 337 of the Local Government Act 1993 . (5) Permission given by the Director of Public Health, the regulator or the general manager for the purposes of this section may be subject to any conditions necessary to ensure that the proposed interment will not be prejudicial to public health or public safety. 30. Exhumation of human remains (1) The Director of Public Health may, in writing, authorise the exhumation of any human remains from any place of interment, including private land, on any conditions specified in the authorisation. (2) Before an exhumation is commenced, the Director of Public Health may – (a) impose conditions on the exhumation; and (b) specify that a person is to supervise, on that Director's behalf, the exhumation, re-interment or cremation of the human remains. (3) A person must not exhume any human remains unless the person – (a) is authorised to exhume the human remains under subsection (1) ; and (b) complies with the conditions imposed in the authorisation under subsection (1) ; and (c) complies with the conditions imposed, or specifications made, in respect of the exhumation under subsection (2) . Penalty: Fine not exceeding 100 penalty units or imprisonment for a term not exceeding 2 years, or both. (4) This section does not disturb the effect of section 39 of the Coroners Act 1995 . 31. Reopening of interments (1) The Chief Magistrate may authorise the re-opening of the place of interment of a deceased person whose death has been the subject of an investigation under the Coroners Act 1995 . (2) If, on the reopening of a place of interment of human remains, an exhumation of the remains is intended, an authorisation under section 30 is required before the exhumation is performed. (3) Despite subsections (1) and (2) , a cemetery manager may reopen a place of interment of human remains without an authorisation under subsection (1) if it is not intended to remove any human remains from the interment. PART 4 - Cemeteries Division 1 - Cemetery managers 32. Approval of persons as cemetery manager (1) A person must not manage a cemetery unless – (a) the person has been approved under this section to be the cemetery manager for the cemetery; or (b) the person is deemed under this Act to be the cemetery manager for the cemetery. Penalty: Fine not exceeding 50 penalty units. (2) A person who proposes to manage a cemetery must apply to the regulator for approval to manage the cemetery. (3) An application under subsection (2) – (a) is to be in an approved form; and (b) must be accompanied by – (i) any information that the regulator considers relevant to the application; and (ii) the relevant prescribed fee, if any. (4) The regulator may only approve a person as a cemetery manager under this section if the regulator is satisfied that – (a) the person is a fit and proper person to be a cemetery manager; and (b) the person is a body corporate with perpetual succession; and (c) the person – (i) owns, or is to own within a reasonable period after the approval of the person as cemetery manager, the land on which the cemetery is located or is to be located; or (ii) is leasing, or is to lease within a reasonable period after the approval of the person as cemetery manager, from the State, or a council, the land on which the cemetery is located or is to be located. (5) Despite subsection (4)(b) , the regulator does not need to be satisfied that a person proposing to manage a cemetery (the applicant) is a body corporate with perpetual succession if – (a) immediately before the commencement of the Burial and Cremation Amendment Act 2018 , or in accordance with section 56 of the Burial and Cremation Act 2002 , the cemetery was owned by a natural person; and (b) the applicant has made an application under this section as a result of entering into an agreement to purchase, or is purchasing, the cemetery from the current owner of the cemetery who is a natural person. (6) Within 21 days after receiving an application under subsection (2) , the regulator is to – (a) approve the person as the cemetery manager for the cemetery; or (b) refuse to approve the person as the cemetery manager for the cemetery; or (c) request further information from the applicant and, after receiving the requested information – (i) approve the person as the cemetery manager for the cemetery; or (ii) refuse to approve the person as the cemetery manager for the cemetery. (7) If the regulator approves a person as the cemetery manager under this section, the regulator, by notice in writing, is to notify that person of the approval. (8) If the regulator refuses to approve a person as the cemetery manager under this section, the regulator, by notice in writing, is to notify that person – (a) of the refusal to approve; and (b) of the reasons for that refusal; and (c) that the person has a right to apply for a review of the decision to refuse the approval, in accordance with the Magistrates Court (Administrative Appeals Division) Act 2001 . (9) A decision of the regulator, under this section, to refuse to approve a person as a cemetery manager is a reviewable decision for the purposes of the Magistrates Court (Administrative Appeals Division) Act 2001 . 33. Cemetery managers to hold cemeteries in trust Subject to this and any other Act, the cemetery manager for a cemetery is taken to hold the land on which the cemetery is situated and all documents relating to the cemetery in trust for the purposes of the cemetery. 34. Duties and powers of cemetery managers (1) A cemetery manager must keep the cemetery for which he or she is the cemetery manager – (a) in accordance with this Act; and (b) so as not to be prejudicial to public health or public safety. Penalty: Fine not exceeding 50 penalty units and a further fine not exceeding 5 penalty units in respect of each day during which the offence continues. (2) Subject to subsection (3) , a cemetery manager must ensure that – (a) as far as reasonably practicable, the cemetery, for which he or she is the cemetery manager, is maintained so as to prevent the cemetery from falling into disrepair, or from being defaced or damaged; and (b) any disrepair or defacement of, or damage to, the cemetery is rectified as soon as practicable. Penalty: Fine not exceeding 50 penalty units. (3) Subsection (2) does not apply to a vault, grave or monument within a cemetery unless – (a) the defacement or damage to the vault, grave or monument was caused by, or was the result of an act that was approved by, the cemetery manager for the cemetery; or (b) the cemetery manager for the cemetery has entered into an agreement under section 39(3) in respect of the vault, grave or monument. (4) A cemetery manager must keep all prescribed records, in the prescribed manner, in respect of the cemetery. Penalty: Fine not exceeding 50 penalty units. (5) A cemetery manager must permit any person to have access free of charge at any reasonable time to visit monuments and graves in any portion of the cemetery. Penalty: Fine not exceeding 30 penalty units and, in the case of a continuing offence, a further fine not exceeding 5 penalty units in respect of each day during which the offence continues. (6) It is a defence in proceedings for an offence under subsection (5) if the cemetery manager establishes that – (a) the person was refused access to all, or a portion, of the cemetery due to the person's behaviour or previous behaviour; or (b) the person was refused access in accordance with the rules of operation for the cemetery. (7) Subject to this and any other Act, a cemetery manager may – (a) improve, embellish and enlarge the cemetery under the management of that manager; and (b) restrict interments in any portion of the cemetery, except as may be required by an exclusive right of burial; and (c) take any other action as may be required for the reasonable management and maintenance of the cemetery. 35. Religious and cultural ceremonies and original distributions (1) A cemetery manager must not, by any act, matter or thing, hinder or disturb the performance of any religious or cultural ceremony relating to the interment of human remains or cremated remains. Penalty: Fine not exceeding 20 penalty units. (2) A cemetery manager must permit a representative of any religious or cultural group to exercise any religious or cultural practices relating to the interment of human remains, or cremated remains, without any hindrance or disturbance by the cemetery manager or any other person. Penalty: Fine not exceeding 20 penalty units. (3) A cemetery manager must not, by any act, matter or thing, hinder or disturb the original division or allocation of the cemetery made in accordance with any trust to which the cemetery is subject, unless the trust is varied in accordance with the Variation of Trusts Act 1994 . Penalty: Fine not exceeding 20 penalty units. (4) It is a defence in proceedings for an offence under subsection (1) or (2) if the cemetery manager establishes that the cemetery manager did not permit the performance of the religious or cultural ceremony, or the exercise of the religious or cultural practices, as to do so would mean that the cemetery would not be in compliance with this or any other Act. 36. Cemetery managers to ensure application of revenue of cemeteries (1) A cemetery manager must make adequate provision, out of any revenue received in respect of each cemetery for which he or she is the cemetery manager, for the purposes of – (a) defraying the cost of its establishment or acquisition, including interest and such amount as the manager thinks proper for administrative expenses; and (b) the maintenance, management and improvement of the cemetery. (2) A cemetery manager must ensure that any fees received by the cemetery manager in respect of future maintenance of vaults, graves and monuments are dealt with by the manager as capital money as if the manager were a trustee. Penalty: Fine not exceeding 50 penalty units. 37. Owner of land taken to be cemetery manager in certain circumstances (1) The owner of land that is a cemetery is taken to be the cemetery manager for the cemetery if – (a) the former cemetery manager for the cemetery is taken to be no longer approved as a cemetery manager by virtue of section 93(3) and a new cemetery manager has not been approved under this Act in respect of the cemetery; or (b) the former cemetery manager for the cemetery leased the land, on which the cemetery is located, from that owner and no longer leases the land; or (c) prescribed circumstances exist in respect of the cemetery. (2) An owner of land that is a cemetery is only taken to be the cemetery manager for the cemetery under this section until – (a) he or she ceases to be the owner of the land; or (b) the land ceases to be a cemetery; or (c) a new cemetery manager is approved under this Act in respect of the cemetery. Division 2 - Cemeteries generally 38. Interments within cemeteries (1) A person must not inter human remains in a cemetery unless the interment is approved, as prescribed, by the cemetery manager for the cemetery. Penalty: Fine not exceeding 50 penalty units. (2) A cemetery manager for a closed cemetery must not approve an interment of human remains in the closed cemetery. Penalty: Fine not exceeding 50 penalty units. 39. Monuments, &c. (1) A cemetery manager may permit any vault or grave to be made or dug, and any monument to be erected or placed, in any portion of the cemetery as the manager thinks proper on payment of a fee fixed by the cemetery manager. (2) A cemetery manager may determine the position of any monument to be erected or placed – (a) according to its description, size and character; and (b) having regard to the general plan for ornamenting the cemetery in an appropriate manner. (3) A person and the cemetery manager of a cemetery may agree, in writing and on payment, by the person, of a fee fixed by the cemetery manager, that the cemetery manager is to maintain a vault, grave or monument within the cemetery according to the terms of the agreement. (4) A cemetery manager of a cemetery that contains a vault, grave or monument that is the subject of an agreement made under subsection (3) must comply with the terms of that agreement. Penalty: Fine not exceeding 50 penalty units. (5) A person must not remove a monument from a cemetery otherwise than in accordance with this Act. Penalty: Fine not exceeding 50 penalty units. 40. Removal of certain monuments in cemeteries (1) If any monument has been erected or placed contrary to the terms and conditions on which the permission to erect or place it was granted or, in the opinion of the cemetery manager, it is unsafe, the cemetery manager may, by notice in writing given to the person responsible for the monument, require the person – (a) to take it down and remove it; or (b) to render it safe – within such reasonable time as may be specified in the notice. (2) For the purposes of this section, a person is the person responsible for a monument if – (a) the person has entered into an agreement with the cemetery manager under section 39(3) in respect of the monument; or (b) if there is no agreement under section 39(3) in respect of the monument and the monument is intended to commemorate a single deceased person, the person is the senior next of kin of the deceased person; or (c) if there is no agreement under section 39(3) in respect of the monument and the monument is intended to commemorate more than one deceased person, the person – (i) is the senior next of kin of a deceased person commemorated by the monument; and (ii) has been determined by the regulator as the person responsible for the monument. (3) If – (a) the person responsible for a monument fails to comply with a requirement made under subsection (1) in respect of the monument; or (b) the cemetery manager is the person responsible for the maintenance of the monument by virtue of an agreement under section 39(3) in respect of the monument; or (c) the cemetery manager, after diligent enquiry, is unable to find the person responsible for the monument – the cemetery manager may – (d) render the monument safe or, if it is not reasonable in the opinion of the cemetery manager to render the monument safe, take the monument down and remove it; and (e) recover in any court of competent jurisdiction the reasonable cost of doing so from the person responsible for the monument. (4) Subsection (3)(b) does not apply in respect of a monument if – (a) an agreement has been entered into under section 39(3) in respect of the monument; and (b) the terms of the agreement require the cemetery manager to bear the cost of rendering the monument safe, or taking the monument down and removing it, in accordance with this section. (5) A cemetery manager may exercise his or her powers under this section without notice if the monument appears to be a danger to persons or property. (6) As soon as practicable after a cemetery manager takes a monument down and removes it under subsection (5) the cemetery manager must – (a) notify the person responsible for the monument; and (b) if an agreement is in place under section 39(3) in respect of the monument and the terms of that agreement meet the requirements of subsection (4)(b) , re-erect the monument at no charge to the person responsible for the monument. 41. Exclusive rights of burial (1) A person may apply to a cemetery manager for an exclusive right of burial to inter any human remains in a specified interment plot or specified portion of a cemetery. (2) A cemetery manager may grant an exclusive right of burial in accordance with subsection (1) either with – (a) an absolute right of burial; or (b) a right of burial for a term of at least 25 years which may be renewed on such other terms and conditions as may be agreed. (3) If a cemetery manager grants an exclusive right of burial in accordance with subsection (1) , the cemetery manager must provide the applicant with a certificate of exclusive right of burial as prescribed. Penalty: Fine not exceeding 20 penalty units. (4) If it is impracticable for a cemetery manager to inter any human remains in an interment plot or portion of a cemetery in accordance with an exclusive right of burial, the cemetery manager must, with the consent of the holder of the right and without further charge, grant to the holder of the right – (a) an exclusive right of burial in another plot or portion of the cemetery; or (b) an exclusive right of burial in another cemetery if so agreed with the manager of that other cemetery. (5) If the holder of an exclusive right of burial does not consent, as required under subsection (4) , to a new grant of an exclusive right of burial, the matter is to be referred to arbitration under the Commercial Arbitration Act 2011 as if there were a request for the dispute to be referred to arbitration under that Act. (6) The cemetery manager must pay the costs of an arbitration under subsection (5) . (7) A cemetery manager must fulfil a valid exclusive right of burial, held by a person, that is in force in respect of the cemetery managed by the cemetery manager unless – (a) another exclusive right of burial is granted to the person under subsection (4) ; or (b) the exclusive right of burial – (i) relates to part of a closed cemetery; and (ii) has been dealt with in accordance with section 67(1) ; or (c) the cemetery manager has been notified in writing by the holder of the exclusive right of burial, or his or her legal representative, that – (i) the exclusive right of burial is terminated; or (ii) the holder of the exclusive right of burial has been cremated and is not to be interred in accordance with the exclusive right of burial; or (iii) the holder of the exclusive right of burial has been interred other than in accordance with the exclusive right of burial. Penalty: Fine not exceeding 50 penalty units. (8) Nothing in this Act disturbs the effect of an exclusive right of burial granted, but not fulfilled or terminated, before the commencement of this section. 42. Notifications of possible cemeteries (1) If – (a) a person believes, on reasonable grounds, that land owned by the person is a cemetery or holds more than one monument; and (b) the person knows, or reasonably suspects, that the land is not covered by an entry in the register kept by the regulator under section 14 – the person is to notify the regulator of that belief, and the reasons that the person holds that belief, as soon as practicable after forming the belief. Penalty: Fine not exceeding 10 penalty units. (2) The general manager of a council is to notify the regulator as soon as practicable after the general manager becomes aware that land within the municipal area of the council – (a) is a cemetery, or holds more than one monument; and (b) is not covered by an entry in the register kept by the regulator under section 14 . (3) If the regulator is notified under this section in respect of land, the regulator is to inform the owner of the land of his or her obligations and rights under this Act. Division 3 - New cemeteries 43. Approval required to establish new cemeteries (1) A person must not establish a cemetery under this Act unless the establishment of that cemetery has been approved by the regulator under this Part. Penalty: Fine not exceeding 50 penalty units. (2) For a new cemetery to be established under this Part, the person who intends to establish the cemetery must be – (a) responsible for the management of the cemetery; and (b) approved under section 32 as the cemetery manager for the cemetery. 44. Application to establish new cemeteries (1) If a person intends to establish a cemetery under this Act, the person must apply to the regulator for approval to establish the cemetery. (2) An application to the regulator under subsection (1) – (a) is to be in an approved form; and (b) must be accompanied by – (i) an application under section 32 for the person intending to establish the cemetery to be approved as the cemetery manager for the cemetery; and (ii) any other information that the regulator considers relevant to the application; and (iii) the relevant prescribed fee, if any. (3) Before determining an application under subsection (1) , the regulator may consider one or more of the following matters in respect of the application: (a) the location, and condition, of the land on which the cemetery is proposed to be established; (b) whether the proposed cemetery may be prejudicial to public health or public safety; (c) any other matter that the regulator considers relevant to determining the application. (4) Within 21 days after receiving an application under subsection (1) , the regulator is to – (a) approve the establishment of the cemetery subject to any conditions that the regulator thinks fit; or (b) refuse to approve the establishment of the cemetery; or (c) request further information from the applicant and, after receiving the requested information – (i) approve the establishment of the cemetery subject to any conditions that the regulator thinks fit; or (ii) refuse to approve the establishment of the cemetery. (5) Despite subsection (4) , the regulator may only approve an application under that subsection in respect of a proposed cemetery if the person intending to establish the cemetery has been approved under section 32 as the cemetery manager for the proposed cemetery. (6) If the regulator has not determined an application under subsection (4) within 60 days after receiving the application, the regulator is to provide the applicant with such information as to the status of the application as the regulator thinks fit. 45. Approval of new cemeteries (1) If the regulator approves an application under section 44(4) , the regulator is to issue to the applicant a written approval to establish the cemetery to which the application relates. (2) An approval to establish a cemetery issued under subsection (1) is to – (a) be in writing; and (b) specify any conditions imposed in respect of the approval. (3) On receipt of an approval to establish a cemetery issued under subsection (1) , the person who was issued the approval may establish the cemetery in accordance with the approval so issued. (4) On receipt of an approval to establish a cemetery issued under subsection (1) , the person who was issued the approval must publish, in the prescribed manner, a notice containing the prescribed information in relation to the cemetery so approved. Penalty: Fine not exceeding 20 penalty units. (5) A decision of the regulator, under section 44(4) , to impose a condition on an approval is a reviewable decision for the purposes of the Magistrates Court (Administrative Appeals Division) Act 2001 . (6) If – (a) an approval to establish a cemetery is issued under subsection (1) ; and