Review of the Law in Relation to the Final Disposal of a Dead Body
Chapter 7 The Right to Control the Disposal of Ashes
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Chapter 7The Right to Control the Disposal of AshesChapter 1 37 Introduction 37 Scope of the review 37 INFORMATION PAPER 38 CONSULTATION PROCESS 38 STRUCTURE OF THIS REPORT 39 Draft Cremations and Other Legislation Amendment Bill 2011 40 Terminology 40 Dead body / human remains 40 The terms of reference for this review use the term ‘dead body’, as do many of the cases in this area. In contrast, the Cremations Act 2003 (Qld) uses the term ‘human remains’, which it defines in the following terms: 40 Ashes 41
Personal representative 41 Potential administrator 43 Matters outside the Terms of Reference 43 Currency 44 Chapter 2 45 Lawful Methods for the Disposal of Human Remains 45 Introduction 45 Methods of disposal 45 Burial 45 Cremation 46 Aquamation 48 In recent times, aquamation has emerged as an additional method for the disposal of a dead body. Aquamation uses a process called alkaline hydrolysis to dissolve the body. At the end of the process, the remaining bones are crushed and can be provided to a deceased person’s family. In this respect, aquamation has a similar outcome to cremation. Advocates of aquamation suggest that it is a more environmentally friendly process than conventional cremation. 48 Other methods of disposal 50 other legislation regulating aspects of the disposal of human remains 50 Section 236(b) of the Criminal Code (Qld) makes it an offence for a person, without lawful justification or excuse, to improperly or indecently interfere with, or offer any indignity to, a dead human body or human remains. Section 236 provides: 50 The law in other jurisdictions 50 New South Wales 51 In New South Wales, the Public Health (Disposal of Bodies) Regulation 2002 (NSW) has recently been amended to recognise ‘alkaline hydrolysis’ (commonly referred to as aquamation) as a lawful method for the disposal of a dead body. 51 Victoria 51 The Cemeteries and Crematoria Act 2003 (Vic) enables the Secretary of the Department of Health (the equivalent of a chief executive or director-general in Queensland) to give his or her approval for a cemetery trust to use a method other than interment (burial) or cremation to dispose of ‘bodily remains’, whether generally, for a class of disposals or for a specific disposal. Such an approval may be made subject to such terms and conditions as the Secretary thinks fit. 51 Information Paper 52 Consultation 52 The Commission’s view 54 Mechanism for approving new methods of disposal 54 Scope of legislative provisions 55 Ministerial approval 55 Maximum penalty 56 Application of other legislation 56 Specific regulation in the future 57 recommendations 57
Introduction 60 Burial in a cemetery or in a place other than a cemetery 60 The common law 61 The tort of trespass protects the interest of a person in maintaining ‘the right to exclusive possession of [his or] her place of residence, free from uninvited physical intrusion by strangers’. If a person wishes to bury human remains on land that is not owned by that person, it is necessary (in addition to any governmental approvals or consents that may be required) to obtain the consent of the owner of the land. In the absence of that consent, burying the human remains on the land will constitute a trespass to land. 61 Entick v Carrington has been applied in Australia: see Halliday v Nevill (1984) 155 CLR 1, 10 (Brennan J); Plenty v Dillon (1991) 171 CLR 635, 639 (Mason CJ, Brennan and Toohey JJ). 61 Commonwealth government regulation 61 State government regulation 62 Local government regulation 66 The law in other jurisdictions 74 Burial at sea 76 Commonwealth regulation 76 State government regulation 81 Local government regulation 84 Places for cremation 84 The common law 84 Commonwealth government regulation 84 State government regulation 84 Local government regulation 85 The law in other jurisdictions 87 Places for the disposal of ashes 88 The common law 88 As explained below, the scattering of ashes does not generally require any governmental approvals or permits. However, this does not mean that a person may bury or scatter ashes in a way that would constitute a trespass to property or create a nuisance at common law. For example, although a deceased person may have had a wish to have his or her ashes scattered at a particular venue, such as Lang Park, the scattering of ashes at that venue without the consent of the relevant landowner would be a trespass to property. 88 Commonwealth government regulation 88 State government regulation 89 Local government regulation 89 The law in other jurisdictions 91 Information Paper 92 Consultation 92 The Commission’s view 94 Burial of human remains in a place other than a cemetery 94 Burial at sea 95 Cremation of human remains at a place other than a crematorium 96 Disposal of ashes 97 Maximum penalties 98 Short title of Act 99 Recommendations 99
Introduction 102 When a person dies, the first priority is to arrange for the disposal of the person’s body. In this chapter, the Commission outlines who has legal rights and duties to decide the method and place of disposal of the human remains of a deceased person. 102 Where there is an executor 103 Where there is an administrator 105 Where there is no executor and no administrator has been appointed 109 As it takes some time to obtain a grant of letters of administration, it will usually be impractical, in cases where there is no will, to delay the disposal of the body of a deceased person until after an administrator has been appointed. Further, in some cases, there may be no intention to obtain a grant of administration. 109 Persons with an equal entitlement to possession of a dead body for disposal 113 The effect of directions given by the deceased 115 Although a deceased person may have given directions about the disposal of his or her body, an executor or administrator is not obliged at common law to act in accordance with those instructions. However, as explained later in this chapter, section 7(3) of the Cremations Act 2003 (Qld) overrides the common law in relation to the effect of signed instructions left by the deceased for his or her body to be cremated. 115 The payment of funeral expenses 115 Statutory modifications under The Cremations Act 2003 (Qld) 116 Signed instructions of the deceased person 116 Section 7 of the Cremations Act 2003 (Qld) deals with the circumstance in which a deceased person’s personal representative is arranging for the disposal of the deceased’s human remains and knows that the deceased has left signed instructions to be cremated. That section provides: 116 The effect of a third party’s objection to cremation 117 The approved form for an application for permission to cremate 120 Burials Assistance Act 1965 (Qld) 121
The law in Queensland 122 The law in other jurisdictions 124 Australia 124 Canada 127 United States of America 128 Recognition of funerary instructions left by a deceased person 129 Issue for consideration 129 Information Paper 132 Consultation 132 The Commission’s view 133 Limits on what may constitute funerary instructions 136 Issue for consideration 136 Information Paper 137 Consultation 138 The Commission’s view 139 Persons who should be required to carry out a deceased person’s funerary instructions 140 It is not uncommon for a person who is not the personal representative of a deceased person to arrange for the disposal of the deceased’s body. For example, although the spouse of a deceased person might be the deceased’s executor (and therefore have the legal entitlement to dispose of the deceased’s body), an adult child of the deceased might make the necessary arrangements with a funeral director because the surviving parent is too distressed or frail to make the arrangements personally. 140 Information Paper 141 Consultation 141 The Commission’s view 142 Formal requirements for funerary instructions 143 Issue for consideration 143 Consultation 145 The Commission’s view 146 Prohibition on issuing permission to cremate or allowing cremation 148 Introduction 148 The Commission’s view 149 Consequential amendments 151 Burials Assistance Act 1965 (Qld) 151 Transplantation and Anatomy Regulation 2004 (Qld) 152 Recommendations 152 Chapter 6 158 The Right to Control the Disposal of Human Remains 158 Introduction 158 the Common law approach 159 Legislative developments in Canada 162 Issues for reform of The Common Law Approach 164 Guiding principles 164 The primacy of the executor 165 Recognition of Aboriginal and Torres Strait Islander kinship structures 166 Many of the cases regarding who should have the duty and right of disposal have involved disputes between the surviving spouse or de facto partner of an Aboriginal deceased and members of the deceased’s Aboriginal family. Often these conflicts have involved the wishes of the deceased’s family to bury the deceased in his or her traditional homeland in keeping with customary law and those of the deceased’s spouse to have the deceased buried elsewhere. In some cases, there have been competing cultural beliefs and practices about who has the right of disposal in relation to the deceased or where the disposal of the deceased’s remains should take place. 166 Disputes between persons with an equal entitlement 168 The exercise of the court’s discretion to determine disputes 169 The common law authorities have expressed different views about the extent to which the court, when determining who should have the duty and right of disposal, should give consideration to cultural and spiritual beliefs and practices where such factors are present. 169 A new Legislative Scheme 173 Information Paper 173 Consultation 174 The Commission’s view 180 The Position of a Person Who is, or may be, criminally responsible for the death of a deceased person 190 Introduction 190 The common law 190 Comparison with succession law 194 Legislation in other jurisdictions 195 Information Paper 195 Consultation 195 The Commission’s view 197 The jurisdiction of the court 202 The Supreme Court 203 The Coroners Court 205 Mediation 207 Information Paper 207 Consultation 208 The Commission’s view 208 The effect of a Third party’s objection to cremation 210 Cremations Act 2003 (Qld) 210 The law in other jurisdictions 211 The Commission’s view 211 A statutory duty to consult 213 Information paper 213 Consultation 214 The Commission’s view 216 Recommendations 216 Chapter 7 222 The Right to Control the Disposal of Ashes 222 Introduction 222 The Commission’s terms of reference require it to review the law regarding the rights and duties associated with the disposal of a dead body. The terms of reference refer, among other things, to: 222 disposal of the ashes of a deceased person 223 The Right to Control the disposal of ashes 223 The common law 224 There has been little judicial consideration of the rights relating to the possession and disposal of ashes. The few cases that have arisen for determination have turned uniquely on their own facts. 224 Cremations Bill 2002 (Qld) 228 Clause 11 of the Cremations Bill 2002 (Qld), as it was originally introduced into Parliament, imposed ‘obligations on the person in charge of a crematorium in respect of the return of ashes’. Clause 11 was initially expressed in the following terms: 228 Cremations Act 2003 (Qld) 230 Section 11 of the Cremations Act 2003 (Qld) provides: 230 The legislation in other jurisdictions 233 Issues for consideration 239 Information Paper 240 Consultation 241 The Commission’s view 243 The crematorium operator’s Dealings with the ashes in the absence of instructions 247 Giving the ashes to another person 247 Disposing of the ashes other than by burial 249 Information Paper 250 Consultation 250 The Commission’s view 251 Protection from liability for person in charge of crematorium 255 The Commission’s view 255 Exercising the discretion to make decisions about the disposal of ashes 255 Effect of the deceased’s wishes 256 Consideration of the claims of others 258 Information Paper 259 The Commission’s view 259 The Commission’s general approach to decision-making about the disposal of the deceased’s body and ashes embodies, among others, two important objectives: to recognise and respect the choices made by a person about the disposal of his or her remains or ashes; and otherwise to preserve the decision-making discretion of the person with decision-making authority. To this end, the Commission has recommended: 259 Recommendations 262
Application of recommended provisions to particular human remains 269 Introduction 269 Human remains that have been buried for one year or more 270 Body parts taken during a medical procedure or autopsy 271 Aboriginal human remains and Torres Strait Islander human remains 273 The Commission’s view 275 Transitional provision 275 Introduction 275 The Commission’s view 276 In the Commission’s view, the legislation that implements the draft Cremations and Other Legislation Amendment Bill 2011 (the ‘Cremations and Other Legislation Amendment Act 2011’) should include a provision to the effect that: 276 Community awareness 276 The Commission’s view 276 Recommendations 277 Appendix A 279 Terms of Reference 279 Appendix B 281 Local Government Regulation of Burial and Scattering of Ashes in Queensland 281 Appendix C 291 Draft Cremations and Other Legislation Amendment Bill 2011 291 Yüklə 3,49 Mb. Dostları ilə paylaş:
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