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

Appendix C

Draft Cremations and Other Legislation Amendment Bill 2011

Queensland

Cremations and Other Legislation
Amendment Bill 2011

Contents
		Page
Part 1	Preliminary
1	Short title	6
2	Commencement	6
Part 2	Amendment of Cremations Act 2003
3	Act amended	6
4	Amendment of long title	6
5	Insertion of new pt 1 hdg .	6
6	Amendment of s 1 (Short title)	7
7	Amendment of s 4 (Cremations this Act does not apply to)	7
8	Insertion of new pt 2, pt 3 hdg and pt 3, div 1 hdg .	7
	Part 2 Decisions about disposal of human remains or ashes
	Division 1 Preliminary
	4A Meaning of funerary instructions	7
	4B Meaning of authorised decision maker	9
	4C Meaning of right to control the disposal	9
	Division 2 Effect of funerary instructions
	4D Duty of person arranging for the disposal of human remains or ashes	10
	Division 3 Right to control disposal of human remains or ashes
	4E Persons who hold right to control disposal of human remains or ashes in absence of court order	10
	4F Court order in relation to right to control disposal of human remains or ashes	12
	4G Authorised decision makers to exercise right jointly	13
	4H Person charged with murder or manslaughter of deceased person	13

	Division 4 Exercise of discretion
	4I Matters that may be taken into account by person arranging for disposal of human remains or ashes	14
9	Replacement of s 7 (Deceased person’s wish to be cremated)	16
	7 Deceased person’s objection to cremation	16
10	Omission of s 8 (Objections to cremation)	16
11	Insertion of new pt 3, div 2 hdg	17
12	Replacement of s 11 (Dealing with ashes)	17
	11 Dealing with ashes	17
	11A Dealing with ashes if applicant dies	17
	11B Dealing with ashes in absence of instructions etc	18
	11C Protection from liability .	19
13	Insertion of new pt 3, div 3 hdg	19
14	Insertion of new pt 3, div 4 hdg	20
15	Insertion of new pts 4 and 5 and pt 6 hdg	20
	Part 4 Places for disposal of human remains in relevant local government areas
	17 Definitions for pt 4	20
	17A Burial of human remains in place other than a cemetery	20
	17B Minister may grant approval for burial of human remains in place other than a cemetery	21
	17C Cremation of human remains at place other than a crematorium	21
	17D Minister may grant approval to cremate human remains at place other than a crematorium	21
	Part 5 Methods of disposal other than burial or cremation
	17E Disposal by method other than burial or cremation	22
	17F Minister may grant approval for disposal by method other than burial or cremation	22
	17G Minister may amend or cancel approval	22
	17H Person to stop using method if approval cancelled	23
16	Insertion of new pt 7 hdg	23
17	Amendment of s 20 (Transitional provision)	23
18	Insertion of new s 21	23
	21 Transitional provision for Cremations and Other Legislation Amendment Act 2011	24
19	Amendment of schedule (Dictionary)	24

Part 3	Amendment of Burials Assistance Act 1965
20	Act amended	25
21	Amendment of s 3 (Burial or cremation of the dead)	25
Part 4	Amendment of Guardianship and Administration Act 2000
22	Act amended	25
23	Amendment of sch 2 (Types of matters)	25
Part 5	Amendment of Powers of Attorney Act 1998
24	Act amended	26
25	Amendment of sch 2 (Types of matters)	26

2011

A Bill

for

An Act to amend the Cremations Act 2003 for particular purposes and to make particular related amendments of the Burials Assistance Act 1965, the Guardianship and Administration Act 2000 and the Powers of Attorney Act 1998

The Parliament of Queensland enacts—

Part 1 Preliminary

1 Short title

This Act may be cited as the Cremations and Other Legislation Amendment Act 2011.

2 Commencement

This Act commences on a day to be fixed by proclamation.

Part 2 Amendment of Cremations Act 2003

3 Act amended

This part amends the Cremations Act 2003.

4 Amendment of long title

Long title, from ‘cremating’—

omit, insert—

‘burying and cremating human remains and to provide for the approval of other methods of disposal and other related matters’.

5 Insertion of new pt 1 hdg

Before section 1—

insert—

‘Part 1 Preliminary’.

6 Amendment of s 1 (Short title)

Section 1, ‘Cremations’—

omit, insert—

‘Burials and Cremations’.

7 Amendment of s 4 (Cremations this Act does not apply to)

(1) Section 4, heading—

omit, insert—

‘Particular human remains to which this Act does not apply’.

(2) Section 4, ‘the cremation of’—

omit.

8 Insertion of new pt 2, pt 3 hdg and pt 3, div 1 hdg

After section 4—

insert—

‘Part 2 Decisions about disposal of human remains or ashes

‘Division 1 Preliminary

‘4A Meaning of funerary instructions

‘(1) A deceased person’s funerary instructions are instructions left by a person that—

(a) express the person’s wishes or directions about any of the following matters—

(i) the method or place of disposal of the person’s human remains;

Example—

a direction that the person’s human remains are to be buried and not cremated

(ii) if the person’s human remains are cremated—the method or place of disposal of the person’s ashes;

Example—

a direction that the person’s ashes are to be interred at a particular columbarium

(iii) whether particular rites or customs are to be observed in relation to the disposal of the person’s human remains or ashes; and

Example—

a direction that, because of the person’s cultural or spiritual beliefs, the person’s human remains are to be buried within a specified time after the person’s death

(b) are signed by the person.

‘(2) However, wishes or directions about a matter mentioned in subsection (1)(a) are not funerary instructions if the wishes or directions would require something to be done that is—

(a) unlawful; or

(b) not able to be carried out or impractical; or

(c) offensive or indecent; or

(d) contrary to public health or safety; or

(e) unreasonable having regard to the net value of the deceased person’s estate.

‘4B Meaning of authorised decision maker

‘An authorised decision maker, for the human remains or ashes of a deceased person, is a person who holds the right to control the disposal of the human remains or ashes—

(a) under section 4E; or

(b) because of a court order made under section 4F.

Note—

See section 4E(4) for when a person’s right to control the disposal ends.

‘4C Meaning of right to control the disposal

‘The right to control the disposal of the human remains or ashes of a deceased person is the right of a person—

(a) to make decisions about any of the following matters—

(i) the method of disposal of the human remains or ashes, except to the extent that the deceased person has left funerary instructions about the method of disposal and the person knows of the instructions;

(ii) the place of disposal of the human remains or ashes, except to the extent that the deceased person has left funerary instructions about the place of disposal and the person knows of the instructions;

(iii) whether particular rites or customs are to be observed in relation to the disposal of the human remains or ashes, except to the extent that the deceased person has left funerary instructions about those matters and the person knows of the instructions; and

(b) to the possession of the human remains or ashes for the purpose of their disposal.

‘Division 2 Effect of funerary instructions

‘4D Duty of person arranging for the disposal of human remains or ashes

‘(1) This section applies if a person—

(a) is arranging for the disposal of the human remains or ashes of a deceased person; and

(b) knows the deceased person has left funerary instructions.

‘(2) The person must take reasonable steps to carry out the deceased person’s funerary instructions.

‘(3) Subsection (2) applies regardless of whether the person is an authorised decision maker for the deceased person’s human remains or ashes.

‘(4) In this section—

arranging for the disposal, of the human remains or ashes of a deceased person, does not include acting in the course of carrying on, or being employed in, a business related to the disposal of human remains or ashes.

Examples of acting in the course of carrying on a business related to the disposal of human remains or ashes—

acting as a funeral director or operator of a crematorium

‘Division 3 Right to control disposal of human remains or ashes

‘4E Persons who hold right to control disposal of human remains or ashes in absence of court order

‘(1) If there is an executor of a deceased person’s will who is able and willing to exercise the right to control the disposal of the human remains or ashes of the deceased person, the right is held by the executor.

Note—

See section 4H(2) for when a person is unable to exercise the right to control the disposal.

‘(2) If there is no executor or no executor who is able and willing to exercise the right to control the disposal, the right devolves on and is held by a person mentioned in the descending order of priority stated in subsection (3) who is able, willing and culturally appropriate to exercise the right.

‘(3) The descending order of priority is as follows—

(a) the spouse of the deceased person;

(b) the children of the deceased person;

(c) the grandchildren of the deceased person;

(d) the great-grandchildren of the deceased person;

(e) the parents of the deceased person;

(f) the siblings of the deceased person;

(g) the nephews or nieces of the deceased person;

(h) the grandparents of the deceased person;

(i) the aunts or uncles of the deceased person;

(j) the first cousins of the deceased person;

(k) a person, other than a person mentioned in paragraphs (a) to (j), who had a personal or kinship relationship with the deceased person.

‘(4) If the right to control the disposal is held by a person under this section and the court makes an order under section 4F removing that right, the person’s right ends on the making of the order.

‘(5) The right to control the disposal can not be held by a person under this section unless the person is an adult.

‘(6) In this section—

culturally appropriate, to exercise the right to control the disposal, means appropriate having regard to the cultural and spiritual beliefs held, or the cultural and spiritual practices

followed, by the deceased person in relation to the disposal of human remains or ashes, including, but not limited to, Aboriginal tradition or Island custom.

Note to reader: See the Acts Interpretation Act 1954, section 36 for the meanings of the expressions Aboriginal tradition and Island custom.

‘4F Court order in relation to right to control disposal of human remains or ashes

‘(1) The court may, on application, make an order in relation to the exercise of the right to control the disposal of the human remains or ashes of a deceased person.

‘(2) In deciding who should hold the right to control the disposal, the court—

(a) must have regard to—

(i) the importance of disposing of human remains in a dignified, respectful and timely way, or disposing of ashes in a dignified and respectful way; and

(ii) any funerary instructions left by the deceased person; and

(iii) any wishes or directions of the deceased person that are not funerary instructions only because the instructions do not comply with section 4A(1)(b); and

(iv) the cultural and spiritual beliefs held, or the cultural and spiritual practices followed, by the deceased person in relation to the disposal of human remains or ashes; and

(v) the interests of any person mentioned in section 4E(3); and

(b) may have regard to any other matter it considers relevant.

‘(3) Without limiting an order that may be made under subsection (1), the court may make an order conferring the right to

control the disposal on any person, including, but not limited to, a person mentioned in section 4E(3).

‘(4) However, the court may make an order conferring the right to control the disposal on a person only if the person is an adult and is able and willing to exercise the right.

Note—

See section 4H(2) for when a person is unable to exercise the right to control the disposal.

‘4G Authorised decision makers to exercise right jointly

‘If there is more than one authorised decision maker for the human remains or ashes of a deceased person, the right to control the disposal must be exercised by those persons jointly.

‘4H Person charged with murder or manslaughter of deceased person

‘(1) This section applies if a person is charged with the murder or manslaughter of a deceased person, regardless of whether the person is charged in Queensland or elsewhere.

‘(2) On being charged, the person is unable to exercise the right to control the disposal of the human remains or ashes of the deceased person.

‘(3) Subsection (2) applies to the person until the day any of the following happens—

(a) if the person has been charged with the murder of the deceased person—the person is acquitted of the charge and the person is not convicted of manslaughter;

Note—

See Criminal Code, section 576(1) for when a person who has been charged on indictment with murder may be convicted of manslaughter.

(b) if the person has been charged with the manslaughter of the deceased person—the person is acquitted of the charge;

(c) if the person has been convicted of the murder or manslaughter of the deceased person—the conviction is quashed on appeal and an order is not made for the person to be retried for the offence of murder or manslaughter;

(d) the person is otherwise discharged from the charge of murder or manslaughter of the deceased person.

‘Division 4 Exercise of discretion

‘4I Matters that may be taken into account by person arranging for disposal of human remains or ashes

‘(1) This section applies to a person who is arranging for the disposal of the human remains or ashes of a deceased person.

‘(2) Without limiting the matters that may be taken into account when making an arrangement mentioned in subsection (1), the person may have regard to—

(a) any wishes or directions of the deceased person that are not funerary instructions only because the instructions do not comply with section 4A(1)(b); or

(b) the cultural and spiritual beliefs held, or the cultural and spiritual practices followed, by the deceased person in relation to the disposal of human remains or ashes, including, but not limited to, Aboriginal tradition or Island custom; or

(c) the interests of a close relative of the deceased person.

‘(3) Subsection (2) does not apply if the person is making an arrangement because of the duty imposed on the person under section 4D.

Note to reader: See section 4D for when a person who is arranging for the disposal of the human remains or ashes of a deceased person must take reasonable steps to carry out the deceased person’s funerary instructions.

‘(4) This section applies regardless of whether the person is an authorised decision maker for the deceased person’s human remains or ashes.

‘(5) To the extent that this section applies to a person who is arranging for the disposal of a deceased person’s ashes, it overrides any requirement arising at common law that the person must have regard to the matters mentioned in subsection (2).

Note to reader: For the common law duty of persons disposing of ashes, see Doherty v Doherty [2007] 2 Qd R 259, 266.

‘(6) In this section—

arranging for the disposal, of the human remains or ashes of a deceased person, does not include acting in the course of carrying on, or being employed in, a business related to the disposal of human remains or ashes.

Examples of acting in the course of carrying on a business related to the disposal of human remains or ashes—

acting as a funeral director or operator of a crematorium.’.

‘