Appendix A Terms of Reference
A Review of the Law in Relation to
the Final Disposal of a Dead Body
1. I, ROD WELFORD, Attorney-General and Minister for Justice, having regard to—
-
the fact that at common law the executor (or person having the highest claim to administer the estate of the deceased person) has the duty and the right to arrange for the final lawful disposal of the deceased person’s body including, probably, the disposal of the deceased person’s ashes; and
-
the fact that at common law the wishes of the personal representative or person who has the duty and the right to dispose of the body are regarded as paramount with respect to the disposal; and
-
the extent to which this common law position is or may be amended by the Cremations Act 2003 and the current provisions governing cremations contained in the Coroners Act 1958, or by any other Queensland laws; and
-
the many and varied cultural and spiritual beliefs and practices in relation to the disposal of bodies; and
-
the fact that from time to time questions arise regarding:
-
whether a person who may have caused the death should be allowed to arrange for the final disposal of the body; and
-
what methods of final disposal of a body are lawful in Queensland; and
-
the fact that from time to time disputes arise regarding:
-
to whom a body is to be released (for example by a hospital or, where relevant, a coroner) for final disposal; and
-
the method of final disposal of the body in a particular case; and
-
the place for the final disposal of the body or ashes;
refer to the Queensland Law Reform Commission for review pursuant to section 10 of the Law Reform Commission Act 1968 Queensland’s laws regarding the duties and rights associated with the final disposal of a dead body, including, but not limited to:
a. whether, and to what extent, a comprehensive legislative framework is required; and
b. whether any new legislation should provide for an easily accessible mechanism to deal with disputes and, if so, the nature of such a mechanism.
2. In performing its functions under this reference, the Commission is asked to prepare, if relevant, draft legislation based on the Commission’s recommendations.
3. The Commission is to report to the Attorney-General and Minister for Justice by 30 June 2006.
Dated the 9th day of December 2003
Rod Welford
Attorney-General and Minister for Justice
Appendix B Local Government Regulation of Burial and Scattering of Ashes in Queensland
The information in this appendix has been extracted from the Local Laws Database published by the Department of Local Government and Planning,0 from the relevant local council websites, and from the Queensland Government Gazette. It reflects the law as at 1 December 2011.
Column 1 of the following table lists each Shire Council, City Council and Regional Council in Queensland. Column 2 lists the local law or laws that regulate cemeteries in all or a part of each local government area. Councils that do not have a local law listed in column 2 do not have a relevant local law.
The shading in columns 2 and 3 indicates that the local law is a ‘continuing local law’ of the former council listed in column 3, and is therefore subject to the transitional provisions of either the Local Government Reform Implementation Regulation 2008 (Qld) or the Local Government Reform Implementation (Transferring Areas) Regulation 2007 (Qld). As explained at [3.31] of this Report, a continuing local law will ordinarily cease to have effect on 31 December 2011. Until that time, it applies only in that part of the local government area that was the local government area of the former council mentioned in column 3.
Council
|
Local law
|
Former
council(s)
(where applicable)
|
Burial outside a cemetery prohibited unless authorised by council
|
Scattering of ashes does not require a permit
|
Scattering of ashes requires a permit
|
Aurukun Shire Council
|
–
|
|
|
|
|
Balonne Shire Council
|
06 Cemeteries 2001
|
|
s 44(1)
|
s 44(2)
|
|
0Banana Shire Council
|
Local Law No 1 (Administration) 2010
|
|
ss 5–7; sch 2
|
No permit required. ‘Undertaking regulated activities regarding human remains’ does not include the burial or disposal of cremated remains outside a cemetery.
|
|
0Barcaldine Regional Council
|
07 Cemeteries
|
Aramac Shire Council
|
s 54(45)
|
s 54(46)
|
|
|
06 Cemeteries
|
Barcaldine Shire Council
|
s 54(1)
|
s 54(2)
|
|
|
07 Cemeteries
|
Jericho Shire Council
|
s 54(1)
|
s 54(2)
|
|
Barcoo Shire Council
|
07 Cemeteries
|
|
s 54(1)
|
s 54(2)
|
|
0Blackall-Tambo Regional Council
|
Local Law No 1 (Administration) 2010
|
|
ss 5–7; sch 2
|
No permit required. ‘Undertaking regulated activities regarding human remains’ does not include the burial or disposal of cremated remains outside a cemetery.
|
|
Boulia Shire Council
|
07 Cemeteries
|
|
s 54(1)
|
s 54(2)
|
|
Brisbane City Council
|
–
|
|
|
|
|
Bulloo Shire Council
|
07 Cemeteries
|
|
s 54(1)
|
s 54(2)
|
|
0Bundaberg Regional Council
|
18 Cemeteries
|
Burnett Shire Council
|
s 44(1)
|
s 44(2)
|
|
|
07 Cemeteries
|
Isis Shire Council
|
s 54(1)
|
s 54(2)
|
|
|
07 Cemeteries
|
Kolan Shire Council
|
s 54(1)
|
s 54(2)
|
|
Burdekin Shire Council
|
18 Cemeteries
|
|
s 44(1)
|
s 44(2)
|
|
Burke Shire Council
|
–
|
|
|
|
|
0Cairns Regional Council
|
21 Cemeteries
|
Cairns City Council
|
s 7(1)(a)
|
No provision
|
|
|
24 Cemeteries
|
Douglas Shire Council
|
s 18(ii)
|
No provision
|
|
0Carpentaria Shire Council
|
Local Law No 1 (Administration) 2011
|
|
ss 5–7; sch 2
|
No permit required. ‘Undertaking regulated activities regarding human remains’ does not include the burial or disposal of cremated remains outside a cemetery.
|
|
0Cassowary Coast Regional Council
|
18 Cemeteries
|
Cardwell Shire Council
|
s 44(1)
|
s 44(2)
|
|
|
12 Cemeteries
|
Johnstone Shire Council
|
s 17(ii)
|
No provision
|
|
0Central Highlands Regional Council
|
13 Cemeteries 2002
|
Bauhinia Shire Council
|
s 45(1)
|
s 45(2)
|
|
|
13 Cemeteries 2007
|
Duaringa Shire Council
|
s 45(1)
|
s 45(2)
|
|
|
13 Cemeteries 2002
|
Emerald Shire Council
|
s 45(1)
|
s 45(2)
|
|
0Charters Towers Regional Council
|
08 Cemeteries 2003
|
Charters Towers City Council
|
s 45(1)
|
s 45(2)
|
|
Cherbourg Aboriginal Shire Council
|
12 Cemeteries
|
|
by-law 14(ii)
|
No provision
|
|
Cloncurry Shire Council
|
–
|
|
|
|
|
Cook Shire Council
|
23 Cemeteries 2001
|
|
s 45(1)
|
s 45(2)
|
|
Croydon Shire Council
|
–
|
|
|
|
|
Diamantina Shire Council
|
07 Cemeteries
|
|
s 54(45)
|
s 54(46)
|
|
Doomadgee Aboriginal Shire Council
|
12 Cemeteries
|
|
by-law 14(ii)
|
No provision
|
|
Etheridge Shire Council
|
–
|
|
|
|
|
Flinders Shire Council
|
18 Cemeteries
|
|
s 44(1)
|
s 44(2)
|
|
0Fraser Coast Regional Council
|
06 Cemeteries
|
Hervey Bay City Council
|
s 54(1)
|
s 54(2)
|
|
|
18 Cemeteries
|
Maryborough City Council
|
s 44(1)
|
s 44(2)
|
|
0Gladstone Regional Council
|
Local Law No 1 (Administration) 2011
|
|
ss 5–7; sch 2
|
No permit required. ‘Undertaking regulated activities regarding human remains’ does not include the burial or disposal of cremated remains outside a cemetery.
|
|
Gold Coast City Council
|
13 Cemeteries 2008
|
|
No provision
|
No provision
|
|
0Goondiwindi Regional Council
|
06 Cemeteries
|
Goondiwindi Town Council
|
s 54(1)
|
s 54(2)
|
|
|
06 Cemeteries
|
Waggamba Shire Council
|
s 54(1)
|
s 54(2)
|
|
0Gympie Regional Council
|
Local Law No 1 (Administration) 2011
|
|
ss 5–7; sch 2
|
No permit required. ‘Undertaking regulated activities regarding human remains’ does not include the burial or disposal of cremated remains outside a cemetery.
|
|
0Hinchinbrook Shire Council
|
09 Cemeteries 2002
|
|
s 45(1)
|
s 45(2)
|
|
Hope Vale Aboriginal Shire Council
|
–
|
|
|
|
|
Ipswich City Council
|
13 Cemeteries
|
|
s 32(1)
|
s 32(2)
|
|
0Isaac Regional Council
|
13 Cemeteries 2007
|
Belyando Shire Council
|
s 45(1)
|
s 45(2)
|
|
|
12 Cemeteries 2002
|
Broadsound Shire Council
|
s 45(1)
|
s 45(2)
|
|
|
09 Cemeteries
|
Nebo Shire Council
|
No provision
|
No provision
|
|
Kowanyama Aboriginal Shire Council
|
–
|
|
|
|
|
0Lockhart River Aboriginal Shire Council
|
11 Cemeteries
|
|
by-law 14(ii)
|
No provision
|
|
Lockyer Valley Regional Council
|
31 Cemeteries
|
Gatton Shire Council
|
s 44(1)
|
s 44(2)
|
|
0Logan City Council
|
04 Cemeteries
|
Beaudesert Shire Council
|
s 15(1)(a)
|
s 15(1)(b): A person must not dispose of cremated human remains on private premises unless authorised by the owner.
|
|
|
27 Cemeteries
|
Gold Coast City Council
|
No provision
|
No permit required. Definition of ‘human remains’ excludes cremated remains.
|
|
0Longreach Regional Council
|
07 Cemeteries
|
Ilfracombe Shire Council
|
s 54(1)
|
s 54(2)
|
|
|
07 Cemeteries
|
Isisford Shire Council
|
s 54(1)
|
s 54(2)
|
|
|
07 Cemeteries
|
Longreach Shire Council
|
s 54(1)
|
s 54(2)
|
|
Mackay Regional Council
|
70 Cemeteries
|
Mackay City Council
|
s 28: A person must not use land in the area as a cemetery unless authorised by a permit under the local law.
|
No provision
|
|
|
10 Cemeteries 2002
|
Mirani Shire Council
|
s 45(1)
|
s 45(2)
|
|
|
13 Cemeteries 2002
|
Sarina Shire Council
|
s 45(1)
|
s 45(2)
|
|
Mapoon Aboriginal Shire Council
|
–
|
|
|
|
|
0Maranoa Regional Council
|
16 Cemeteries
|
Booringa Shire Council
|
s 44(1)
|
s 44(2)
|
|
|
10 Cemeteries
|
Bungil Shire Council
|
s 15(ii)
|
No provision
|
|
McKinlay Shire Council
|
02 Cemeteries
|
|
s 5(1)(a)
|
|
s 5(1)(i): An application is required to scatter ashes.
|
0Moreton Bay Regional Council
|
Local Law No 1 (Administration) 2011
|
|
ss 5–7; sch 2
|
No permit required. ‘Undertaking regulated activities regarding human remains’ does not include the burial or disposal of cremated remains outside a cemetery.
|
|
Mornington Shire Council
|
11 Cemeteries
|
|
s 6(1)(a)
|
No provision
|
|
Mount Isa City Council
|
14 Cemeteries
|
|
s 44(1)
|
s 44(2)
|
|
Murweh Shire Council
|
07 Cemeteries
|
|
s 54(19)
|
s 54(20)
|
|
Napranum Aboriginal Shire Council
|
–
|
|
|
|
|
0North Burnett Regional Council
|
20 Cemeteries 2005
|
Eidsvold Shire Council
|
s 45(1)
|
s 45(2)
|
|
|
13 Cemeteries 2003
|
Gayndah Shire Council
|
s 45(1)
|
s 45(2)
|
|
|
22 Cemeteries
|
Monto Shire Council
|
s 651
|
No provision
|
|
|
32 Cemeteries
|
Mundubbera Shire Council
|
No provision
|
No provision
|
|
|
12 Cemeteries
|
Perry Shire Council
|
s 15(i)
|
No provision
|
|
0Northern Peninsula Area Regional Council
|
23 Cemeteries
|
Injinoo Aboriginal Shire Council
|
by-law 23.01
|
No provision
|
|
Palm Island Aboriginal Shire Council
|
12 Cemeteries
|
|
by-law 14(ii)
|
No provision
|
|
0Paroo Shire Council
|
Local Law No 1 (Administration) 2011
|
|
ss 5–7; sch 2
|
No permit required. ‘Undertaking regulated activities regarding human remains’ does not include the burial or disposal of cremated remains outside a cemetery.
|
|
Pormpuraaw Aboriginal Shire Council
|
–
|
|
|
|
|
Quilpie Shire Council
|
07 Cemeteries
|
|
s 54(1)
|
s 54(2)
|
|
Redland City Council
|
03 Cemeteries
|
|
s 44(1)
|
s 44(2)
|
|
Richmond Shire Council
|
–
|
|
|
|
|
0Rockhampton Regional Council
|
05 Cemeteries
|
|
s 54(1)
|
s 54(2)
|
|
0Scenic Rim Regional Council
|
Local Law No 1 (Administration) 2011
|
|
ss 5–7; sch 2
|
No permit required. ‘Undertaking regulated activities regarding human remains’ does not include the burial or disposal of cremated remains outside a cemetery.
|
|
0Somerset Regional Council
|
18 Cemeteries
|
Esk Shire Council
|
s 45(1)
|
s 45(2)
|
|
|
18 Cemeteries
|
Kilcoy Shire Council
|
s 44(1)
|
s 44(2)
|
|
0South Burnett Regional Council
|
18 Cemeteries
|
Kingaroy Shire Council
|
s 44(1)
|
s 44(2)
|
|
|
18 Cemeteries
|
Murgon Shire Council
|
s 44(1)
|
s 44(2)
|
|
|
07 Cemeteries
|
Nanango Shire Council
|
s 54(1)
|
s 54(2)
|
|
|
18 Cemeteries
|
Wondai Shire Council
|
s 44(1)
|
s 44(2)
|
|
Southern Downs Regional Council
|
06 Cemeteries
|
Stanthorpe Shire Council
|
s 54(1)
|
s 54(2)
|
|
|
18 Cemeteries 2006
|
Warwick Shire Council
|
s 29(1)
|
s 29(2)
|
|
0Sunshine Coast Regional Council
|
11 Cemeteries
|
Caloundra City Council
|
s 15(1)(a)
|
s 15(1)(b): A person must not dispose of cremated human remains on private premises unless authorised by the owner.
|
|
|
18 Cemeteries
|
Maroochy Shire Council
|
s 44(1)
|
s 44(2)
|
|
|
14 Cemeteries
|
Noosa Shire Council
|
s 3
|
No provision
|
|
0Tablelands Regional Council
|
21 Cemeteries 2005
|
Atherton Shire Council
|
s 45(1)
|
s 45(2)
|
|
|
20 Cemeteries
|
Eacham Shire Council
|
s 16(i)
|
No provision
|
|
|
14 Cemeteries
|
Herberton Shire Council
|
s 15(i)
|
No provision
|
|
|
16 Cemeteries
|
Mareeba Shire Council
|
s 44(1)
|
s 44(2)
|
|
0Toowoomba Regional Council
|
05 Cemeteries
|
Cambooya Shire Council
|
s 54(1)
|
s 54(2)
|
|
|
07 Cemeteries
|
Clifton Shire Council
|
s 54(1)
|
s 54(2)
|
|
|
07 Cemeteries
|
Crows Nest Shire Council
|
s 54(1)
|
s 54(2)
|
|
|
07 Cemeteries
|
Jondaryan Shire Council
|
s 54(1)
|
s 54(2)
|
|
|
07 Cemeteries
|
Millmerran Shire Council
|
s 54(1)
|
s 54(2)
|
|
|
07 Cemeteries
|
Pittsworth Shire Council
|
s 54(1)
|
s 54(2)
|
|
|
07 Cemeteries
|
Rosalie Shire Council
|
s 54(1)
|
s 54(2)
|
|
|
43 Cemeteries
|
Toowoomba City Council
|
s 35(1)
|
s 35(2)
|
|
Torres Shire Council
|
–
|
|
|
|
|
0Torres Strait Island Regional Council
|
Local Law No 1 (Administration) 2010
|
|
ss 5–7; sch 2
|
Approval not required.
‘Undertaking regulated activities regarding human remains’ does not include the burial or disposal of cremated remains outside a cemetery.
|
|
0Townsville City Council
|
17M Cemeteries
|
Thuringowa City Council
|
s 44(1)
|
s 44(2)
|
|
0Western Downs Regional Council
|
Local Law No 1 (Administration) 2011
|
|
ss 5–7; sch 2
|
No permit required. ‘Undertaking regulated activities regarding human remains’ does not include the burial or disposal of cremated remains outside a cemetery.
|
|
0Whitsunday Regional Council
|
18 Cemeteries
|
Bowen Shire Council
|
s 5(1)(a)
|
No provision
|
|
|
24 Cemeteries 2003
|
Whitsunday Shire Council
|
s 45(1)
|
s 45(2)
|
|
0Winton Shire Council
|
Local Law No 1 (Administration) 2011
|
|
ss 5–7; sch 2
|
No permit required. ‘Undertaking regulated activities regarding human remains’ does not include the burial or disposal of cremated remains outside a cemetery.
|
|
Woorabinda Aboriginal Shire Council
|
–
|
|
|
|
|
0Wujal Wujal Aboriginal Shire Council
|
Local Law No 1 (Administration) 2011
|
|
ss 5–7; sch 1
|
No permit required. ‘Human remains’ excludes cremated remains.
|
|
Yarrabah Aboriginal Shire Council
|
–
|
|
|
|
|
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