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CREMATIONS BILL 2002

       Queensland




CREMATIONS BILL 2002

 


 

 

Queensland CREMATIONS BILL 2002 TABLE OF PROVISIONS Section Page 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2 Commencement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 3 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 4 Cremations this Act does not apply to. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 5 Permission required for cremation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 6 Getting permission to cremate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 7 Deceased person's wish to be cremated . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 8 Objections to cremation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 9 Beneficiaries etc. not to issue permission to cremate . . . . . . . . . . . . . . . . . . 7 10 Prohibiting cremation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 11 Dealing with ashes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 12 Record keeping--coroner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 13 Record keeping--independent doctor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 14 Record keeping--person in charge of crematorium . . . . . . . . . . . . . . . . . . . 9 15 Record keeping--former owner of crematorium . . . . . . . . . . . . . . . . . . . . . 11 16 False or misleading information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 17 Meaning of "de facto partner". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 18 Approval of forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 19 Regulation-making power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 20 Transitional provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 SCHEDULE . . . . . . . . . . . . . . . . . . . . . . . . 14 DICTIONARY

 


 

 

2002 A BILL FOR An Act to regulate the process of cremating human remains

 


 

s1 4 s5 Cremations Bill 2002 The Parliament of Queensland enacts-- 1 1 Short title 2 This Act may be cited as the Cremations Act 2002. 3 2 Commencement 4 This Act commences on the day that the Coroners Act 2002 commences. 5 3 Definitions 6 The dictionary in the schedule defines particular words used in this Act. 7 4 Cremations this Act does not apply to 8 This Act does not apply to the cremation of-- 9 (a) human remains that have been buried for 1 year or more; or 10 (b) parts of a human body taken during a medical procedure or 11 autopsy; or 12 (c) human remains to which the Cultural Record (Landscapes 13 Queensland and Queensland Estate) Act 1987, section 34 14 applies. 15 5 Permission required for cremation 16 A person must not cremate human remains unless the person has a 17 permission to cremate the remains that was issued by-- 18 (a) if an autopsy of the remains was conducted under the Coroners 19 Act 1958 or Coroners Act 2002--the coroner who ordered the 20 autopsy or, if that coroner is unavailable, another coroner; or 21 (b) otherwise--an independent doctor. 22 Maximum penalty--140 penalty units. 23

 


 

s6 5 s6 Cremations Bill 2002 6 Getting permission to cremate 1 (1) The following persons1 may apply for permission to cremate the 2 human remains of a deceased person-- 3 (a) a close relative of the deceased person; 4 (b) a personal representative2 of the deceased person; 5 (c) if neither a close relative nor a personal representative applies for 6 permission to cremate--another adult who has a satisfactory 7 explanation as to why those persons did not apply and why the 8 adult is applying. 9 (2) The application must be made in the approved form. 10 (3) The way that an application may be sent to the coroner or 11 independent doctor includes by fax or other electronic means. 12 (4) If the application is made to an independent doctor, the application 13 must be accompanied by-- 14 (a) a copy of the cause of death certificate, and unless subsection (5) 15 applies, a cremation risk certificate, issued for the deceased 16 person; or 17 (b) a certificate that-- 18 (i) authorises the release of the body; and 19 (ii) is given by a person who appears to the independent doctor, 20 after appropriate inquiry, to be a coroner, or to hold a 21 position equivalent to a coroner, at the place where the death 22 happened. 23 (5) For subsection (4)(a), the application need not be accompanied by a 24 cremation risk certificate if-- 25 (a) the cause of death certificate is not a Queensland cause of death 26 certificate; and 27 (b) a cremation risk certificate has not been issued for the deceased 28 person. 29 (6) A coroner may issue a permission to cremate only if-- 30 1 Under the general law, these persons may act through an agent. 2 Under the Acts Interpretation Act 1954, section 36, a "personal representative" of a deceased person is the deceased person's executor or administrator.

 


 

s7 6 s7 Cremations Bill 2002 (a) the coroner or another coroner has authorised the release of the 1 body; and 2 (b) the coroner receives confirmation from the doctor who 3 performed the autopsy that the doctor is reasonably satisfied the 4 human remains do not pose a cremation risk. 5 (7) Human remains pose a "cremation risk" if the remains contain 6 something that, if cremated, might expose someone to the risk of death, 7 injury or illness. 8 9 Example of something that might expose someone to risk of death, injury or illness-- 10 A cardiac pacemaker or radioactive implant. (8) An independent doctor may issue a permission to cremate only if the 11 doctor, after examining the human remains and making any necessary 12 inquiries, is reasonably satisfied-- 13 (a) the human remains do not pose a cremation risk; and 14 (b) the deceased person's death is not a reportable death under the 15 Coroners Act 2002. 16 Maximum penalty--80 penalty units. 17 (9) The way that a permission to cremate may be sent to the applicant, or 18 a person nominated by the applicant on the application, includes by fax or 19 other electronic means. 20 7 Deceased person's wish to be cremated 21 (1) This section applies if a deceased person's personal representative-- 22 (a) is arranging for the disposal of the deceased person's human 23 remains; and 24 (b) knows that the deceased person has left signed instructions for 25 his or her human remains to be cremated. 26 (2) The deceased person's personal representative must ensure that-- 27 (a) an application for permission to cremate is made; and 28 (b) if the permission to cremate is issued, the deceased person is 29 cremated in accordance with the signed instructions. 30 (3) This section overrides the common law to the extent that it-- 31 (a) allows a person to direct the person's personal representative to 32 cremate the person's human remains; and 33

 


 

s8 7 s9 Cremations Bill 2002 (b) qualifies a personal representative's right to decide how to 1 dispose of the deceased person's human remains. 2 8 Objections to cremation 3 (1) This section does not apply if the deceased person has left signed 4 instructions that his or her human remains be cremated. 5 (2) A coroner or independent doctor must not issue a permission to 6 cremate if the coroner or independent doctor is aware that any of the 7 following persons object to the cremation-- 8 (a) a spouse, adult child or parent of the deceased person; 9 (b) a personal representative of the deceased person. 10 (3) The person in charge of a crematorium must not allow a deceased 11 person's human remains to be cremated at the crematorium if the person in 12 charge is aware that any of the following persons object to the cremation-- 13 (a) a spouse, adult child or parent of the deceased person; 14 (b) a personal representative of the deceased person. 15 Maximum penalty--100 penalty units. 16 (4) Subsection (3) applies even if the person in charge has received a 17 permission to cremate. 18 (5) This section overrides the common law to the extent that it qualifies a 19 personal representative's right to decide how to dispose of the deceased 20 person's human remains. 21 9 Beneficiaries etc. not to issue permission to cremate 22 (1) This section applies if a coroner or independent doctor reasonably 23 suspects that the coroner or independent doctor, or the coroner's or 24 independent doctor's spouse, may receive a benefit because of a person's 25 death. 26 (2) The coroner or independent doctor must not issue a permission to 27 cremate the person's human remains. 28 Maximum penalty--120 penalty units. 29 (3) In this section-- 30 "benefit"-- 31

 


 

s 10 8 s 11 Cremations Bill 2002 (a) includes-- 1 (i) a payment under a life insurance policy; and 2 (ii) property under a will; and 3 (iii) property under an intestate distribution; but 4 (b) does not include fees payable for professional services. 5 10 Prohibiting cremation 6 (1) The Attorney-General or a coroner may give the person in charge of 7 a crematorium a written notice prohibiting the cremation of a deceased 8 person's human remains. 9 (2) The notice may prohibit the cremation-- 10 (a) absolutely; or 11 (b) until any stated organs or other tissue have been removed from 12 the remains and stored in the way stated in the notice. 13 (3) The person in charge must comply with the notice unless the person 14 has a reasonable excuse. 15 Maximum penalty for subsection (3)--140 penalty units. 16 11 Dealing with ashes 17 (1) The person in charge of a crematorium must not deal with the ashes 18 remaining after a cremation except-- 19 (a) by giving the ashes to the applicant for permission to cremate, or 20 someone nominated by the applicant in writing; or 21 (b) if the applicant is the deceased person's personal 22 representative--in accordance with any reasonable written 23 instructions of the personal representative. 24 Maximum penalty--80 penalty units. 25 (2) However, the person in charge may bury the ashes in a burial ground 26 if, within 1 year after the cremation-- 27 (a) the applicant or the applicant's nominee does not collect the 28 ashes; or 29 (b) the applicant does not give reasonable written instructions for the 30 disposal of the ashes. 31

 


 

s 12 9 s 14 Cremations Bill 2002 (3) Before burying the ashes, the person in charge must give the 1 applicant at least 14 days written notice of intention to bury the ashes. 2 Maximum penalty--80 penalty units. 3 (4) The notice must be sent to the applicant at the applicant's address for 4 service on the permission to cremate. 5 (5) The return of the ashes to someone other than the personal 6 representative does not affect anyone else's right to possess the ashes. 7 12 Record keeping--coroner 8 (1) This section applies if a coroner issues a permission to cremate. 9 (2) The coroner must keep-- 10 (a) the application for permission to cremate, including any 11 documents accompanying the application; and 12 (b) a copy of the permission to cremate. 13 (3) The documents must be kept on the coroner's file relating to the 14 investigation of the deceased person's death. 15 (4) The chief executive may require a coroner to produce a document 16 required to be kept under this section to the chief executive for inspection. 17 (5) The coroner must comply with the requirement unless the coroner 18 has a reasonable excuse. 19 13 Record keeping--independent doctor 20 (1) This section applies if an independent doctor issues a permission to 21 cremate. 22 (2) The independent doctor must arrange for the application for 23 permission to cremate, including any documents accompanying the 24 application, to be given to the person in charge of the crematorium where 25 the deceased person is cremated. 26 14 Record keeping--person in charge of crematorium 27 (1) The person in charge of a crematorium must keep at the 28 crematorium-- 29

 


 

s 14 10 s 14 Cremations Bill 2002 (a) a record3 of particulars, prescribed under a regulation, of each 1 cremation at the crematorium; and 2 (b) if, immediately before the commencement of this section, the 3 person in charge was required, under the Coroners Act 1958, 4 section 23F(3),4 to keep a register--the register and the 5 information contained in the register. 6 Maximum penalty--80 penalty units. 7 (2) The person in charge may combine the record and the register 8 required to be kept under subsection (1) into 1 document. 9 (3) The person in charge must keep-- 10 (a) if the permission to cremate was issued by an independent 11 doctor--the application for permission to cremate, including any 12 documents accompanying the application; and 13 (b) the permission to cremate; and 14 (c) if, immediately before the commencement of this section, the 15 person in charge was required, under the Coroners Act 1958, 16 section 23A(4),5 to keep a permission or certificate--the 17 permission or certificate; 18 for each cremation at the crematorium for 15 years after the cremation. 19 Maximum penalty--80 penalty units. 20 (4) The chief executive may require the person in charge to produce a 21 document required to be kept under this section to the chief executive for 22 inspection. 23 (5) The person in charge must comply with the requirement unless the 24 person in charge has a reasonable excuse. 25 Maximum penalty--100 penalty units. 26 3 Under the Acts Interpretation Act 1954, section 36, a "record" includes information stored or recorded by means of a computer. 4 Section 23F (Duties of officer in charge of crematorium) 5 Section 23A (Conditions of cremation)

 


 

s 15 11 s 16 Cremations Bill 2002 15 Record keeping--former owner of crematorium 1 (1) This section applies if, during the period that a document is required 2 to be kept under section 14(3), the business carried on at the crematorium 3 ceases. 4 (2) The former owner of the crematorium must ask for the chief 5 executive's directions about the document's storage. 6 Maximum penalty--80 penalty units. 7 (3) The chief executive must give the former owner written directions 8 about the document's storage. 9 (4) The former owner must comply with the chief executive's directions 10 about the document's storage. 11 Maximum penalty--80 penalty units. 12 (5) The chief executive may require the former owner to produce a 13 document required to be kept under this section to the chief executive for 14 inspection. 15 (6) The former owner must comply with the requirement unless the 16 former owner has a reasonable excuse. 17 Maximum penalty for subsection (6)--100 penalty units. 18 16 False or misleading information 19 (1) A person must not give information to a coroner or independent 20 doctor that the person knows is false or misleading in a material particular. 21 Maximum penalty--80 penalty units. 22 23 Example-- 24 A person must not falsely state that the person is the deceased person's spouse in an 25 application for permission to cremate. (2) Subsection (1) does not apply to information given in a document, if 26 the person when giving the document-- 27 (a) informs the coroner or independent doctor, to the best of the 28 person's ability, how the information is false or misleading; and 29 (b) if the person has, or can reasonably obtain, the correct 30 information--gives the correct information. 31

 


 

s 17 12 s 17 Cremations Bill 2002 (3) It is enough for a complaint against a person for an offence against 1 subsection (1) to state that the information was `false or misleading', 2 without specifying whether it was false or whether it was misleading. 3 17 Meaning of "de facto partner" 4 (1) In this Act, a reference to a "de facto partner" is a reference to 5 either 1 of 2 persons who are living together as a couple on a genuine 6 domestic basis but who are not married to each other or related by family. 7 (2) In deciding whether 2 persons are living together as a couple on a 8 genuine domestic basis, any of their circumstances may be taken into 9 account, including, for example, any of the following circumstances-- 10 (a) the nature and extent of their common residence; 11 (b) the length of their relationship; 12 (c) whether or not a sexual relationship exists or existed; 13 (d) the degree of financial dependence or interdependence, and any 14 arrangement for financial support; 15 (e) their ownership, use and acquisition of property; 16 (f) the degree of mutual commitment to a shared life, including the 17 care and support of each other; 18 (g) the care and support of children; 19 (h) the performance of household tasks; 20 (i) the reputation and public aspects of their relationship. 21 (3) No particular finding in relation to any circumstance is to be regarded 22 as necessary in deciding whether 2 persons are living together as a couple 23 on a genuine domestic basis. 24 (4) Two persons are not to be regarded as living together as a couple on a 25 genuine domestic basis only because they have a common residence. 26 (5) For subsection (1)-- 27 (a) the gender of the persons is not relevant; and 28 (b) a person is related by family to another person if the person and 29 the other person would be within a prohibited relationship within 30

 


 

s 18 13 s 20 Cremations Bill 2002 the meaning of the Marriage Act 1961 (Cwlth), section 23B, if 1 they were parties to a marriage to which that section applies.6 2 (6) This section, and the definitions "de facto partner" and "spouse" in 3 the dictionary, expire on the commencement of the Acts Interpretation Act 4 1954, section 32DA. 5 18 Approval of forms 6 (1) The chief executive may approve forms for use under this Act. 7 (2) A person must not combine an approved form with advertising 8 material. 9 10 Example-- 11 An application for permission to cremate must not contain a business logo. Maximum penalty for subsection (2)--40 penalty units. 12 19 Regulation-making power 13 (1) The Governor in Council may make regulations under this Act. 14 (2) Without limiting subsection (1), a regulation may-- 15 (a) prescribe fees for this Act; or 16 (b) impose a penalty of not more than 20 penalty units for a 17 contravention of a provision of a regulation. 18 20 Transitional provision 19 If an application for a permission and certificate to cremate was made 20 before the commencement of this section, the Coroners Act 1958, 21 sections 23A to 23G, continue to apply in relation to the cremation despite 22 the repeal of those sections. 23 6 Marriage Act 1961 (Cwlth), section 23B (Grounds on which marriages are void)

 


 

14 Cremations Bill 2002 SCHEDULE 1 DICTIONARY 2 section 3 3 "autopsy" means an autopsy or post mortem under-- 4 (a) the Coroners Act 1958, the Coroners Act 2002 or the 5 Transplantation and Anatomy Act 1979; or 6 (b) a law of another State or country that corresponds to an Act 7 mentioned in paragraph (a). 8 "burial ground" includes a place reserved for the burial of ashes 9 remaining after a cremation. 10 "cause of death certificate" means-- 11 (a) a Queensland cause of death certificate issued by a doctor; or 12 (b) a certificate stating the cause of death that is issued by a doctor. 13 "close relative" means-- 14 (a) a spouse of the deceased person; or 15 (b) a child of the deceased person who is at least 18 years; or 16 (c) a parent of the deceased person; or 17 (d) a brother or sister of the deceased person who is at least 18 years; 18 or 19 (e) if the deceased person was an Aboriginal person or Torres Strait 20 Islander--a person who is an appropriate person according to the 21 tradition or custom of the community to which the deceased 22 person belonged. 23 "coroner" means-- 24 (a) a coroner under the Coroners Act 2002; or 25 (b) if the reference to coroner is made in the context of the Coroners 26 Act 1958, a coroner under that Act. 27 "cremation risk" see section 6(7). 28

 


 

15 Cremations Bill 2002 SCHEDULE (continued) "cremation risk certificate" means a certificate that-- 1 (a) states whether the deceased person's human remains pose a 2 cremation risk; and 3 (b) is signed by either-- 4 (i) the doctor who signed the cause of death certificate; or 5 (ii) if the doctor who signed the cause of death certificate is not 6 available--another doctor; and 7 (c) is-- 8 (i) in the approved form; or 9 (ii) included on a copy of the cause of death certificate, either as 10 part of the certificate or as an endorsement on the certificate. 11 "de facto partner" see section 17. 12 "doctor", other than in the term independent doctor, includes a person 13 who, in another State or country, is equivalent to a doctor.7 14 "human remains" means the remains after death of a human body, or part 15 of a human body, and includes the body of a stillborn child. 16 "independent doctor" means a doctor who did not sign-- 17 (a) the cause of death certificate; or 18 (b) the cremation risk certificate. 19 "medical procedure" means a diagnostic or surgical procedure. 20 "Queensland cause of death certificate" means either of the following 21 certificates under the Registration of Births, Deaths and Marriages 22 Act 1962-- 23 (a) a medical certificate of the cause of death, other than a certificate 24 mentioned in section 31 of that Act; or 25 (b) a medical certificate of the cause of peri-natal death, other than a 26 certificate that section 24(4) of that Act deems not to be a 27 medical certificate as to the cause of death. 28 7 Under the Acts Interpretation Act 1954, section 36, a "doctor" is a medical practitioner under the Medical Practitioners Registration Act 2001, schedule 3, that is, a person registered under the Medical Practitioners Registration Act 2001.

 


 

16 Cremations Bill 2002 SCHEDULE (continued) "spouse" includes de facto partner. 1 "stillborn child" means a child not born alive as defined in the 2 Registration of Births, Deaths and Marriages Act 1962, 3 section 5(2)(b). 4 5 State of Queensland 2002

 


 

AMENDMENTS TO BILL

1 Cremations Bill 2002 CREMATIONS BILL 2002 AMENDMENTS AGREED TO IN COMMITTEE 1 Clause 5-- At page 4, line 18, after `permission to cremate the remains'-- insert-- `, in the approved form,'. 2 Clause 6-- At page 5, lines 2 to 9-- omit, insert-- `(1) The following persons may apply for a permission to cremate the human remains of a deceased person-- (a) a close relative of the deceased person, either personally or through an agent; Example of an agent-- A funeral director. (b) a personal representative1 of the deceased person, either personally or through an agent; (c) if no-one mentioned in paragraph (a) or (b) applies for a permission to cremate--another adult, either personally or through an agent, who has a satisfactory explanation as to why those persons did not apply and why the adult is applying.'. 3 Clause 6-- At page 5, line 30 and page 6, line 11, after `a permission to cremate'-- insert-- `, in the approved form,'. 1 Under the Acts Interpretation Act 1954, section 36, a "personal representative" of a deceased person is the deceased person's executor or administrator.

 


 

2 Cremations Bill 2002 4 Clause 11-- At page 8, lines 18 to 31 and page 9, lines 1 and 2-- omit, insert-- `(1) The person in charge of a crematorium must not dispose of the ashes remaining after a cremation except in accordance with any reasonable written instructions of the applicant. Maximum penalty--80 penalty units. `(2) However, the person in charge may bury the ashes in a burial ground if, within 1 year after the cremation, the applicant does not give reasonable written instructions for the disposal of the ashes. `(3) Before burying the ashes, the person in charge must give the applicant at least 28 days written notice of intention to bury the ashes.'. 5 Clause 11-- At page 9, lines 6 and 7-- omit, insert-- `(5) This section overrides the common law to the extent that it qualifies the personal representative's right to decide how to dispose of the deceased person's human remains.'. 6 Schedule-- At page 15, line 1, after `a certificate'-- insert-- `in the approved form, or a notation on a copy of the cause of death certificate,'. 7 Schedule-- At page 15, lines 7 to 11-- omit, insert-- `available--another doctor.'.

 


 

3 Cremations Bill 2002

 


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