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Review of the Cemeteries Act 1986 and Cremation Act 1929
The Cemeteries Act provides that a deceased person must be buried in a proclaimed cemetery that is not closed. However, under Section 12 of the Cemeteries Act, the Minister for Local Government or his/her delegate may authorise the burial of a dead body
in a place other than a cemetery where the burial is to take place:
When making a decision whether a burial outside a proclaimed cemetery may take place, the Minister considers:
Consideration is also given to whether the granting of the request will create a risk to health or other nuisance or cause reasonable offence to others. This may include requiring an environmental report to ensure any burial would not impact on a public
water supply or unreasonably damage the land.
Land reserved under the Land Administration Act 1997 (LAA) for the purposes of burials includes those cemeteries that have been closed. In this situation, a person may request burial with other members of their family who are already buried at these sites.
The application must be accompanied by:
The consent of all parties with claim over the land area is required. In the case of Aboriginal burials in remote Aboriginal communities, this will be by the local Aboriginal bodies/corporations with responsibility for the management of the land.
In addition, consent from Native Title Claim Groups, pastoral lease holders, ALT, Registrar of Aboriginal Sites, and the DPLH will also be required. It is important to gain consent from all parties involved to ensure that the burial has community
For burials in a closed cemetery, written consent from the relevant cemetery authority is required, stating that they support the proposed burial, and that the cemetery has the capacity for the burial. An exemption from the WA Governor may also be
Although the burial must be in an area that is visibly set apart for and distinguishable as a burial place, approval is not conditional on the grave itself being marked.
When applications for burials outside of proclaimed cemeteries are approved, the Minister for Local Government may require that the burial is recorded on the certificate of title for the relevant land by way of a notification lodged with Landgate.
If the Minister places this condition on a burial approval, a notification can be lodged pursuant to section 70A of the Transfer of Land Act 1893 (TLA).
Recording a burial on the title ensures that all interested parties to the land such as occupiers and prospective purchasers are aware of the existence of the burial. Additionally, family members of the deceased person have an official record
of the exact burial site.
Currently, burial records generally are maintained by the individual landowners or managing authorities of the unproclaimed cemetery. There is no legislative requirement under the Cemeteries Act to keep a central register of all burials which occur
outside of proclaimed cemeteries.
When applications are received by the Minister for Local Government, DLGSC will record each application in an internal record keeping system. This includes the application form and supporting documents as required by DLGSC’s Burials Outside
a Proclaimed Cemetery Policy (Policy). The Minister’s decision is also stored on the database.
DPLH also records some limited information regarding burial applications received by DLGSC which requires consent by DPLH. Such applications generally relate to Crown land, ALT estate or Aboriginal Heritage Sites land. An online mapping tool and Western
Australian Planning Commission Layout Plans are also available on the DPLH’s website for those who are seeking further information regarding the land tenure of Aboriginal communities and cemeteries.
In some cases, there are limited records on historical burials, particularly those that have occurred without the knowledge of DLGSC. In the past, Aboriginal community members have approached DLGSC to express their concerns regarding the lack of records
and unmarked graves within their community cemetery. The lack of records can cause difficulty in obtaining details about proposed burial locations, which may result in delays on processing applications for burials. While applications are progressed
as quickly as possible, any delays often result in community frustration and concern regarding the timeframe and approval process.
Burials outside of proclaimed cemeteries are permitted in limited circumstances in most Australian jurisdictions, subject to approval from relevant authorities. The conditions of approval are often prescribed in legislation or provided for in a guideline
or policy document.
The VIC Act specifies that approval may be granted subject to conditions such as the zoning of the land, the existing arrangements for the care of the proposed burial site and the connection of the deceased to the land. Under the SA Act and Tasmania’s
Burial and Cremation Act 2019 (TAS Act), the approval is subject to consideration and approval by the relevant council or local government authority that administers and manages the area. While there is no specific Queensland legislation that
precludes burials outside of proclaimed cemeteries, a local government may have a local law that allows these types of burials. In Queensland, the Department of Environment and Resource Management has developed a policy in relation to burials
on land administered under the Land Act 1994 (QLD). While the policy states that burials outside recognised burial places are not generally supported, approval may be given in limited circumstances for burial on leasehold or land subject to an
occupation licence, where there is evidence of existing grave sites on that land5.
Recording of the details of these burials occurs in various ways but is generally separate from interment information held for cemeteries. For instance, in Victoria, an approval for a burial outside of a public cemetery must be lodged with the Victorian
Register of Titles. These burial approvals are then registered on the folio to which the land title relates, so that people are aware of the burial ground and its location6. The South Australia Outback Communities Authority maintains a public
register which was developed in consultation with the State Register of Births, Deaths and Marriages.7 Under the TAS Act, the relevant council records the burial site and request that the burial site be recorded on the land title.
Under the Northern Territory’s Burial and Cremation Bill 2019 (withdrawn in 2019), it was proposed that a register of burials outside of a cemetery be established and maintained by the Department of Local Government, Housing and Community Development.
The Bill was originally introduced with the intention to reflect the current practices and wishes of the NT community which supports traditional burials, allow Aboriginal organisations and landowners to manage their own cemeteries, formalising
kinship and cultural decision making and ensuring record keeping for future generations. However, due to cultural sensitivities and concerns on the proposed imposition of penalties, the Bill was withdrawn8.
Issue 4A.1: When DLGSC considers applications for burials in places other than proclaimed cemeteries, it may experience difficulties in identifying existing burials relevant to the application which may cause delays in the approval process.
There is a lack of a central register of names and locations of burials that can be used to search for burial sites and details of persons buried.
Option 1: Retain status quo.
Option 2: Introduce legislative and/or policy reforms to consolidate information about burials outside of proclaimed cemeteries into one register to be held and maintained by a suitable State agency, for example DLGSC or MCB.
Issue 4A.2: There is no requirement under the Cemeteries Act for burials outside of proclaimed cemeteries to be recorded on the corresponding certificate of title. Currently, the Minister for Local Government may require an applicant
to ensure that the approved burial is recorded on the relevant certificate of title as a condition of approval of the burial.
Option 2: Introduce a policy to require burials outside of proclaimed cemeteries to be recorded on the Certificate of Title, and update forms and guidelines as necessary.
Option 3: Introduce a legislative requirement for a burial outside of a proclaimed cemetery to be recorded on the land title. Legislation may refer to the notification provision in the TLA.
Issue 4B.1: Under the Cemeteries Act, the Minister for Local Government or his/her delegate may authorise the burial of a dead body in a place other than a cemetery where:
Option 2: A senior officer at DLGSC to be responsible for approving burials outside of proclaimed cemeteries, with a right of review/appeal to the Minister.
Option 3: The relevant local government to be responsible for approving burials outside of proclaimed cemeteries in their district.