Review of the Law in Relation to the Final Disposal of a Dead Body

Queensland

Law Reform Commission

A Review of the Law in Relation to the Final Disposal of a Dead Body
Report

Report No 69

December 2011

© State of Queensland (Queensland Law Reform Commission) 2011

ISBN: 978 0 9805799 7 0

The short citation for this Report is QLRC R 69

COMMISSION MEMBERS
Chairperson: The Hon Justice RG Atkinson
Full-time member: Assoc Prof TCM Hutchinson
Part-time members: Mr JK Bond SC

Prof BF Fitzgerald

Mr BJ Herd

Mrs SM Ryan

SECRETARIAT
Director: Ms CE Riethmuller
Assistant Director: Mrs CA Green
Secretary: Mrs JA Manthey
Legal Officers: Ms AL Galeazzi

Ms PL Rogers
Administrative Officers: Ms KS Giles

Mrs A Lathouras

Postal address: PO Box 13312, George Street Post Shop, Qld 4003

Telephone: [phone]

Facsimile: [phone]

Email: [e-mail]

Website: http://www.qlrc.qld.gov.au

Table of contents
EXECUTIVE SUMMARY i

SUMMARY OF RECOMMENDATIONS xi

Chapter 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

Chapter 3 60

Places for the Disposal of Human Remains and Ashes 60

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

Burial in a Commonwealth reserve 61

Burial in a war grave 62

State government regulation 62

Land administered under the Land Act 1994 (Qld) and dedicated for cemetery purposes 62

Under the Land Act 1994 (Qld), the Minister may dedicate ‘unallocated State land’ as a reserve for ‘community purposes’, which is defined in the Act to include cemeteries (and crematoria). 62

(c) subject to a lease, licence or permit issued by or for the State, other than a permit to occupy under this Act issued by the chief executive. 62

Other land administered under the Land Act 1994 (Qld) 64

Local government regulation 66

Local laws dealing with cemeteries 66

Of the 73 local governments in Queensland, 58 have local laws that regulate cemeteries in either all or some part of their respective local government areas. 66

The effect of recent local government reforms on the operation of local laws 66

Scope of the current local laws 67

The concept of ‘model local laws’ 70

The local laws that are enacted by local governments are commonly based on what are known as ‘model local laws’. A ‘model local law’ is a local law that is approved by the Minister for Local Government as being suitable for adoption by local governments. 70

Model local laws dealing with cemeteries 70

The law in other jurisdictions 74

Burial outside a cemetery prohibited unless approved by Minister or chief executive 74

In the ACT, the Northern Territory, Victoria and Western Australia, the legislation prohibits a person from burying the body of a deceased person in a place other than a cemetery unless the person has (in the ACT, the Northern Territory and Western Australia) the Minister’s written permission or (in Victoria) the written approval of the Secretary of the Department of Health (the equivalent of a chief executive or director-general in Queensland). 74

Burial outside a cemetery prohibited unless relevant approvals obtained 74

Burial outside a cemetery prohibited 76

Burial at sea 76

Commonwealth regulation 76

Environment Protection (Sea Dumping) Act 1981 (Cth) 76

It is an offence under section 10A of the Environment Protection (Sea Dumping) Act 1981 (Cth) for a person, otherwise than in accordance with a permit, to dump ‘controlled material’: 76

Definition of ‘Australian waters’ 77

The Environment Protection (Sea Dumping) Act 1981 (Cth) defines ‘Australian waters’ in the following terms: 77

Waters excluded from the definition of ‘Australian waters’ 78

Application process for permit to bury a dead body at sea 81

Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) 81

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

Current local laws 85

Of the 73 local governments in Queensland, 48 currently have local laws that deal with crematoria in either all or some part of their respective local government areas. 85

Model local laws 86

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

Local laws 89

Burial of ashes 89

Scattering of ashes 91

The majority of local laws that deal with the disposal of human remains provide expressly that a permit is not required for the scattering of cremated remains outside a cemetery. 91

Model local law 91

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

Chapter 4 102

An Overview of the Current Law:
The Right to Decide the Method and Place of Disposal 102

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

What happens in practice 104

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

Chapter 5 122

Recognition of Funerary Instructions Left by a Deceased Person 122

The law in Queensland 122

The law in other jurisdictions 124

Australia 124

Directions that the body of a deceased person is to be cremated 124

Directions that the body of a deceased person is not to be cremated 126

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

Directions about the method of disposal of human remains 133

Directions about the place of disposal of human remains 135

Directions about the method and place of disposal of ashes 135

Directions about the rites or customs to be observed 135

Extension of recognition to expressions of ‘wishes' 136

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

Requirement to be signed 146

Requirement to be made personally 147

Prohibition on issuing permission to cremate or allowing cremation 148

Introduction 148

The Commission’s view 149

Prohibition on issuing permission to cremate 149

Consequential change to the approved form for an application for permission to cremate 150

Consequential amendments 151

Burials Assistance Act 1965 (Qld) 151

The Commission’s view 151

Transplantation and Anatomy Regulation 2004 (Qld) 152

The Commission’s view 152

As explained earlier in this chapter, the Transplantation and Anatomy Regulation 2004 (Qld) includes provisions dealing with the disposal, by the head of a school of anatomy (‘an accepting school’), of bodies donated for anatomical examination or for the study or teaching of anatomy. Section 6 provides that if, during the deceased person’s lifetime, the person gave written instructions about the disposal of his or her body, the person in charge of the accepting school must: 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 enactment of a statutory hierarchy 174

Cultural and spiritual beliefs and practices 177

The Commission’s view 180

Is there a need to reform the current law? 180

In its consideration of this area of the law, the Commission has been guided by four key principles. These are that the law should: 180

A new legislative scheme 181

The statutory hierarchy 183

The legislative scheme should provide for a statutory hierarchy that specifies who holds the right to control the disposal in the absence of a court order. 183

Where there is an executor 183

An executor of a deceased person’s will, being a person chosen by the deceased, should have the highest place in the statutory hierarchy. Accordingly, the legislation should provide that, if there is an executor of a deceased person’s will and the executor is able and willing to exercise the right to control the disposal of the human remains of the deceased person, the right is held by the executor. There is no equivalent right conferred on an administrator under this provision. This is because, in contrast to an executor, who is chosen by the deceased, an administrator is appointed by the Supreme Court, under a grant of letters of administration, to administer the deceased’s estate. 183

Where there is no executor 183

If there is no executor or no executor who is able and willing to exercise the right to control the disposal under the statutory hierarchy, the right should devolve on and be held by the person, or persons, in the first of the following paragraphs who is, or are, able, willing and culturally appropriate to exercise the right: 183

When a person’s right to control the disposal ends 185

Person must be an adult 185

The court’s power to make an order in relation to the exercise of the right to control the disposal 186

The court’s power generally 186

In the Commission’s view, the legislative scheme should generally provide that the court may, on application, make an order in relation to the exercise of the right to control the disposal of the human remains of a deceased person. This would empower the court to make a wide range of orders, including an order to confer the right on, or remove the right from, a person, or to make a declaration about the exercise of the right. 186

The exercise of the court’s discretion 186

The legislative scheme should provide that, if the court is determining who should have the right to control the disposal, the court must have regard to the following five factors: 186

Person must be able and willing to exercise the right and be an adult 188

Authorised decision-makers to exercise power jointly 189

The legislative scheme contemplates that, in some circumstances, the right to control the disposal may be held by more than one authorised decision-maker. This situation could arise either because there is more than one person on the same level of the statutory hierarchy, or because the court has made an order resulting in more than one person holding the right to control the disposal. 189

The extension of the legislative scheme to ashes 189

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

Australia 190

New Zealand 193

Comparison with succession law 194

Discretion to pass over an executor or potential administrator 194

The forfeiture rule 194

Legislation in other jurisdictions 195

Information Paper 195

Consultation 195

The Commission’s view 197

Conviction of murder or manslaughter 197

Charge of murder or manslaughter 198

Other offences relating to the death of a person 200

When the restriction ceases to apply 201

The jurisdiction of the court 202

The Supreme Court 203

Jurisdiction 203

Cost 204

As with all civil litigation, there is some cost involved in bringing an application to the Supreme Court. For example, the usual fee for individuals for filing an originating application in the Supreme Court is $750 and for filing an application for probate or letters of administration is $555. However, a reduced fee of $100 is available, on application, in a number of circumstances: 204

The Coroners Court 205

Mediation 207

Information Paper 207

Consultation 208

The Commission’s view 208

Retention of the Supreme Court’s exclusive jurisdiction 208

Mediation 209

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

Omission of section 8 211

Consequential change to the approved form for an application for permission to cremate 212

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

Persons who may give instructions about the disposal of ashes 233

Persons to whom the ashes may be delivered 235

Persons in an order of priority with the right to control the disposal of the ashes 238

Issues for consideration 239

Information Paper 240

Consultation 241

The Commission’s view 243

Extension of new legislative scheme to ashes 243

Modification of legislative scheme regarding the court’s consideration of factors 246

Consequential amendments to the Cremations Regulation 2003 (Qld) 247

As explained at [] above, section 3(g) of the Cremations Regulation 2003 (Qld) prescribes the matters of which the crematorium operator must keep a record in relation to the disposal of the ashes remaining after each cremation at the crematorium. 247

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

Dealing with the ashes if the applicant dies 251

Dealing with the ashes if no instructions are given or no collection is made within one year after the cremation 252

Replacement of section 11(2) 252

In the Commission’s view, it is appropriate that the Cremations Act 2003 (Qld) permits a crematorium operator to deal with the ashes after one year has passed since the cremation, and does not require the crematorium operator to retain the ashes indefinitely. However, the Commission considers that the scope of section 11(2) is unnecessarily limited and inflexible, and should be replaced with a new provision. 252

Omission of definition of ‘burial ground’ 254

Consequential amendment to the Cremations Regulation 2003 (Qld) 254

As explained at [7.97] above, the crematorium operator is required to keep a record of certain matters when he or she has disposed of ashes in accordance with section 11(2) of the Act. Those matters are prescribed by section 3(g)(ii) of the Cremations Regulation 2003 (Qld). In light of the Commission’s recommendation that section 11(2) be replaced with a new provision, the Commission considers that section 3(g)(ii) should be consequentially amended. It should reflect that, after giving the required notice, the crematorium operator may give the ashes to a particular person or may dispose of the ashes in any lawful way. 254

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