GUIDE TO THE CEMETERIES AND CREMATORIA ACT (NSW) 2013 Prepared by
This guide will help cemetery and crematorium operators in New South Wales understand the new Cemeteries and Crematoria Act 2013 and the new Cemeteries and Crematoria Regulations 2014. The guide will also help operators understand what must be done in the early stages of the commencement of the legislation. Copyright Mills Oakley Lawyers - May 2015 2
GUIDE TO THE CEMETERIES AND CREMATORIA ACT (NSW) 2013 Introduction The majority of the Cemeteries and Crematoria Act 2013 (Act) and the entirety of the Cemeteries and Crematoria Regulations 2014 (Regulations) commenced on 1 November 2014. The purpose of the Act and Regulations is to provide a regulatory basis for the management of all cemeteries and crematoria in New South Wales (NSW), as well as to implement long term planning and management strategies for the interment sector. The Act regulates all three areas of the cemetery sector: Crown, private and local. However, the Act does not disturb certain provisions of the Crown Lands Act NSW 1989, nor certain provisions of legislation administered by the Office of Fair Trading and the Department of Health. A. The Cemeteries Agency One of the most important aspects of this new legislation is the formation of Cemeteries and Crematoria NSW, referred to throughout the Act as the Cemeteries Agency (Agency). The Agency was constituted at the same time as the commencement of the Act. Prior to the Agency being commenced, the Cemetery Reform Group began working with the NSW interment sector and helped with the early implementation stages of the new legislation. Therefore, the Agency will now take forward the implementation work begun by the Cemetery Reform Group. The Agency has a strategic and regulatory oversight role, with functions and powers enabling it to ensure that all cemetery operators make adequate provision for the care and maintenance of their cemeteries. The powers of the Agency are scalable to enable its remit to evolve over time and to address any potential issues as they emerge. The Agency is led by a board of four (4) voting members. The board is chaired by Dr Stepan Kerkyasharian AO. The board also comprises seven (7) non-voting members: a local government expert, representatives of five (5) key government agencies and the CEO of the Agency. 3
B. Cemeteries and Crematoria Register (section 27) Section 27 of the Act requires the Agency to establish and maintain a Cemeteries and Crematoria Register (Register) of all the cemeteries and crematoria within the State. Over the past year the Cemetery Reform Group worked with all members of the interment sector to gather and collate all the relevant information to be used to form the basis of the Register. Each cemetery operator was approached by the Committee and required to give the following information: (a) the name and location of the cemetery/crematorium; (b) the name and address of the cemetery operator; (c) key contact details of the cemetery or crematorium operator; and (d) any other information required by the Regulations. The Agency estimates that registered facilities account for approximately 99 per cent of all interments in 2013. This means, at present, the vast majority of active cemeteries and crematoria have been registered. Moving forward, each cemetery operator must notify the Agency of any material change in the information given within 14 days after the change has occurred. This Register will be open for public inspection, without charge and during ordinary business hours. Operators of cemeteries/crematoria that have not been registered can download a registration form from the Department of Primary Industry s website. The form can also be used to notify the Agency of any material changes in the information provided by the cemetery operators. If a cemetery operator operates more than one cemetery or crematorium, there is provision by way of a second form that will allow you to accurately document each cemetery/crematorium under your control as a cemetery operator. Once the form is complete it should be emailed to: cc.register@cemeteries.nsw.gov.au. Copyright Mills Oakley Lawyers - May 2015 4
GUIDE TO THE CEMETERIES AND CREMATORIA ACT (NSW) 2013 C. Crown Cemetery Trusts (Part 5) As many of you are aware, there have been significant changes to the Crown cemeteries sector. In 2012, 17 trusts were amalgamated and streamlined. Four (4) trusts now manage Crown cemeteries in the greater Sydney area: 1. Catholic Metropolitan Cemeteries Trust; 2. Northern Metropolitan Cemeteries Trust; 3. Southern Metropolitan Cemeteries Trust; and 4. Rookwood General Cemeteries Reserve Trust (encompassing the non-catholic portions at Rookwood Necropolis). A fifth trust, the Rookwood Necropolis Trust, is responsible for whole-of-rookwood matters, including implementation of the Plan of Management and maintenance on common infrastructure. There are also five (5) remaining very small rural/regional NSW trusts. These ten (10) trusts, as well as local councils appointed to manage the affairs of Crown cemetery trusts, are now subject to Part 5 of the Act operation of Crown cemeteries and crematoria. The Cemetery Reform Group had already been working closely with these trusts prior to the commencement of the Act. The result is most Crown trusts are already well advanced in the preparation needed to successfully implement the following key requirements of Part 5 of the Act. (1) Code of Conduct (Section 86) By 1 February 2015, all Crown cemetery operators will have prepared and adopted a code of conduct that will be observed by its trust board and any persons employed by it. This code of conduct must be reviewed every three years by the Agency. The Agency can require the trust to make any changes it considers appropriate by making regulations prescribing any matter that the Agency requires to be included in the code of conduct. This would be to keep the trust within the framework of an acceptable code of conduct. A consultation draft of a Model Code of Conduct will be sent to all trusts shortly. Those trusts that already have a code of conduct will be taken to have complied with the requirement of having a code of conduct. However the Agency will expect those trusts to be able to modify their codes if necessary to meet the requirements of the Model Code when it is finalised after consultation. 5
(2) Strategic Plan (section 90) By 1 November 2015, all Crown cemetery operators must put forward a strategic plan to be approved by the Agency. The strategic plan must be for the management of the operation of each Crown cemetery trust for which the operator is responsible. If the operator is responsible for more than one trust, then it may prepare a single draft strategic plan for all those trusts. The aim of the strategic plan is to ensure that all cemetery operators have articulated a strategic direction and outlined a plan to deliver it. (3) Annual Report (section 99) Under the new Act, a Crown cemetery operator must, within four months after the end of each financial year, submit an annual report for that financial year to the Agency. The annual report must include the following: (a) an audited financial statement for the period to which the report relates; (b) a report about the operations of the trust and the performance of its functions under the Act during the period to which the annual report relates (prepared in accordance with the Act and the Regulations); and (c) such financial reports, opinions, budgets, reports and other matters as may be prescribed by the Regulations. The first annual report will need to be provided for the 2014-2015 financial year. Copyright Mills Oakley Lawyers - May 2015 6
GUIDE TO THE CEMETERIES AND CREMATORIA ACT (NSW) 2013 (4) Establishment of Crown Trust Committees (section 103) Pursuant to the Act, a trust board must also establish the following committees: (a) a finance committee; (b) an audit risk committee; and (c) a community advisory committee to liaise with communities to which the trust board provides cemetery services. The trust board may also establish any other committee that it would like so long as it has these three. The trust board has 12 months from the 1 November 2014 in which to set up these committees. (5) Local councils There are currently 118 cemetery reserves under trust management by 54 local councils in NSW. These councils are therefore also subject to Part 5 of the Act. However, the current view is that local council trust managers should be exempted under Part 5 in its entirety using the exemption provision provided for in section 72(1)(a). This exemption will require formal approval by the Agency board. Cemetery operators that have been granted exemptions will be notified in early 2015. The only approaching deadline for local councils is the adoption of a code of conduct, but councils already comply with the requirements due to separate local government requirements. 7
D. Interment Rights (Part 4) (1) Introduction Part 4 of the Act is titled interment rights. This section is relevant to all Crown, private and local government sectors. Unlike most of the rest of the Act, Part 4 has yet to commence. The projected commencement date for this part is mid 2016. (2) Renewable Interment Rights Renewable interment involves the purchase of a right to inter human remains, and for those remains to be left undisturbed for an initial period of time, with the option of renewing those rights for additional subsequent periods. Renewable interment rights are not a new concept in NSW. However, the Act extends renewable interment rights as an option to Crown cemeteries. Pursuant to the Act, the maximum initial term for renewable interment rights is 25 years for human remains and 99 years for cremated remains. While the initial term can be renewed, or extended, the total term cannot exceed 99 years for both human remains and cremated remains. Part 4 will not affect any interment rights or burial licences granted prior to commencement of the Part. However, pursuant to section 52, a cemetery operator may revoke a perpetual interment right if the perpetual interment right is not exercised within 50 years after it is granted. Copyright Mills Oakley Lawyers - May 2015 8
GUIDE TO THE CEMETERIES AND CREMATORIA ACT (NSW) 2013 Quick overview Crown trusts The Agency has been working with Crown cemetery operators on implementing Part 5 of the Act. Code of Conduct By 1 February 2015, each trust would have adopted a code of conduct. This would not have been an issue as most trusts already had sophisticated codes of conduct in place. Trusts will only have to amend their codes of conduct if necessary to meet the requirements of the Model Code when it is finalised. For all smaller rural/regional NSW trusts, a model code of conduct will be provided to them for guidance as necessary. Local Government Code of Conduct Local councils already have a code of conduct in place due to separate local government requirements. Cemeteries and crematoria under trust management by local councils will be contacted by the Agency in the proceeding weeks in relation to the likely exemption of these trusts from the entirety of Part 5, due to their already highly sophisticated reporting and management requirements. Cemeteries and Crematoria Register Nearly all operating cemeteries and crematoria in NSW have been accounted for on this Register. If you are one of the very few that may have been missed refer to the details in this booklet for how to register. If there is any material change to the information a cemetery operator has provided, the operator has 14 days from the date the change occurs in which the notify the Agency. 9
Glossary To help you understand the Cemeteries and Crematoria Act 2013, we have included a glossary of some commonly used words. The definitions provided are not the definitions from the Act they are a plain English description of the term: Cemeteries Agency Cemetery operator Crown cemetery operator Cemetery Reform Group The Cemeteries Agency is the Agency that was enacted on the same day as the commencement of the Cemeteries and Crematoria Act 2013. A cemetery operator for a cemetery or crematorium administered by a local council will be the council. In any other case (excluding a Crown cemetery operator), a cemetery operator will be the person who is responsible for the management of the cemetery or crematorium. A Crown cemetery operator is the trust board or person who has management of the affairs of the trust. The Cemetery Reform Group was the business unit in the Department of Primary Industries responsible for cemetery matters prior to the establishment of the Cemeteries Agency on 1 November, 2014. Who to contact? This guide has been prepared for you by Mills Oakley Lawyers. If you have any further questions on the Act please contact: Vera Visevic Partner Not-for-profit, Sydney T: (02) 8289 5812 E: vvisevic@millsoakley.com.au Copyright Mills Oakley Lawyers - May 2015 10
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