Topic 2: Alternative methods for the disposal of human remains

Review of the Cemeteries Act 1986 and Cremation Act 1929

Background

Key issue 2A: burials

The Cemeteries Act does not define a traditional burial, or other types of burials such as Aboriginal customary burials or natural burials, and how these are to be regulated. The regulatory responsibility lies on cemetery authorities to determine how these are to be conducted. Some cemeteries in WA offer natural burials, including Bunbury Cemetery, Pinnaroo Valley Memorial Park and Meekatharra Cemetery.

Key issue 2B: cremation

The Cremation Act does not define traditional cremation, or new method of cremation such as alkaline hydrolysis that essentially dissolves the body, commonly referred to as aquamation.

Section 7 of the Cremation Act provides for ashes to be delivered to the cremation permit holder when not buried at the site of the crematorium. Some cemetery authorities have requirements for the disposal of ashes within a cemetery, but there are no requirements regarding the disposal of ashes outside a cemetery.

Burials at sea are regulated under the Environment Protection (Sea Dumping) Act 1981 (Commonwealth), which is administered by the federal Department of Agriculture, Water and the Environment. People seeking to arrange a burial at sea require a sea dumping permit. No permit is required to scatter ashes at sea.

Other jurisdictions

Natural burials are provided for in the NSW Act and the SA Act. In South Australia, natural burial grounds are treated separately from a cemetery.

In Victoria, the Cemeteries and Crematoria Act 2003 (VIC Act) provides that the Secretary of the Department of Health can give approval for the use of a method other than cremation or burial either generally, or for a specific disposal.

In New South Wales, alkaline hydrolysis is included in the definition of cremation.

While alternative methods of disposal and natural burials are not dealt with in the QLD Burials Act, the Queensland Law Reform Commission has recommended that approval to dispose of a body other than by burial or cremation should sit with the relevant Minister ¹.

The Northern Territory’s Cemeteries Act 1952 (NT Act) provides for burial and cremation.

Issues and reform options for Topics 2A and 2B

Topic 2A: Alternative methods for the disposal of human remains — burials

Issues

Issue 2A.1: The Cemeteries Act does not provide definitions for types of burials.

Reform options

Option 1: Retain status quo

Pros:

Cemetery authorities have the flexibility to determine what type of burial services they provide and how these are to be performed.

Cons:

Uncertainty as to what types of burials are regulated under the Cemeteries Act and what types of burials cemetery authorities can provide.

Option 2: Legislation to provide for alternative methods of burial, refer to other types of burials and include a definition recognising traditional burials and alternative burials such as:

traditional burial entombment or burial in a vault
Aboriginal customary burials
natural burial
vertical burial
burials of other faiths

Regulations to provide standards as to how certain types of burials should be undertaken.

Burial

burial means:

the burial of human remains or cremated human remains in the ground
the placement of human remains or cremated human remains in a mausoleum, vault, columbarium or other structure
Aboriginal customary burials
the burial or placement of human remains or cremated human remains, as prescribed by the regulations.

Pros:

May provide greater certainty and clarity as to forms of burials that cemetery authorities can provide.
New alternative methods of burials will be recognised in the legislation.

1. To what extent do you agree that the legislation should expressly provide for alternative burials in addition to traditional burials?

2. To what extent do you agree that the legislation should provide for how certain types of burials are undertaken, for example, standards relating to how a body is prepared, etc?

3. If you support that the legislation should provide for alternative burials, do you agree with the proposed definition?

Issue

Issue 2A.2: Current legislation does not set out requirements for coffins, caskets, shrouds, etc.

Reform options

Option 1: Retain status quo.

Pros:

Cemetery authorities are able to determine their own requirements for coffins, caskets, shrouds, etc.

Cons:

Requirements may vary between cemeteries.

Option 2: Legislation to provide for requirements e.g. material, name plate, etc.

Pros:

Standardised requirements between cemeteries.

Cons:

May result in cemetery authorities having less autonomy in determining their own operational requirements.
May result in increased costs to cemetery authorities to ensure they comply with any new requirements under the legislation.

1. To what extent do you agree that the legislation should set out requirements for coffins, caskets, shrouds, etc. instead of cemetery authorities determining their own requirements?

Topic 2B: Alternative methods for the disposal of human remains — cremations

Issues

Issue 2B.1: The Cremation Act does not provide definitions for types of cremation.

Reform options

Option 1: Retain status quo.

Cons:

Uncertainty as to what constitutes a cremation.
Uncertainty as to whether alternative methods of cremation can be undertaken by cemetery authorities.

Option 2: Legislation to provide a definition for cremation. Alternative methods of cremation to be prescribed in regulations.

Cremation: cremation means a process for the reduction of human remains by fire or heat, or by any other means prescribed by the regulations.

Pros:

Greater certainty as to what constitutes a ‘cremation’.
May allow for emerging alternative methods of cremations to be recognised in the legislation.

Cons:

If it is intended that the legislation recognises new alternative methods of cremation, the new definition(s) should be sufficiently broad.
Regulations will need to be updated if new methods of cremation are added in the future.

1. To what extent do you agree that the legislation should include a definition of cremation?

2. To what extent do you agree that the legislation should expressly provide for alternative methods of cremation?

3. If you agree that the legislation should provide a definition of cremation, do you agree with the proposed definition?

Issues

Issue 2B.2: There are no legislative provisions in the Cremation Act for the disposal of ashes where they remain unclaimed from a crematorium.

Reform options

Option 1: Retain status quo.

Pros:

If the crematorium is located within a public cemetery, cemetery authorities have the flexibility to determine how unclaimed ashes are dealt with at that crematorium and cemetery.

Cons:

Uncertainty as to how unclaimed ashes are to be dealt with if not provided for in legislation.
Possible inconsistencies between crematoria as to how unclaimed ashes are dealt with.

Option 2: The legislation should regulate how a crematorium should dispose of unclaimed ashes after a certain period of time where the ashes remain unclaimed and notice requirements have been met.

Pros:

Clarity as to how unclaimed ashes are to be dealt with.
Consistency between crematoria.

Cons:

New requirements placed on the crematorium to deal with unclaimed ashes.
Crematoriums may incur costs in disposing of unclaimed ashes.

1. To what extent do you agree that the legislation should provide for how unclaimed ashes are to be dealt with?

2. If you agree that the legislation provides for the disposal of unclaimed ashes, how long should a crematorium be required to hold onto the ashes before it is able to dispose of the ashes after the crematorium has notified the cremation permit holder of its intention to dispose of the ashes due to being unclaimed?