Did you know on 25th June 2018, the NSW Government introduced regulations to the Cemeteries and Crematoria Act 2013, to enable cemeteries and crematoriums throughout NSW to offer “renewable internment rights” to only lease burial plots? The leases are available for 25 years, after which time the family has an option to renew the lease or risk having the remains of their loved one removed from the burial site.
Background
In NSW, the land used for a burial site is not owned by the deceased person or their family. Rather, the holder of the burial site purchases an “internment right” for Government or privately-owned land, and then has the legal right to bury the remains of a deceased person in that place. An internment right can be owned jointly by two or more people and is capable of being left to a beneficiary under a will. However according to Government modelling, it is estimated that the cemeteries in greater Sydney would be completely full within the next 30 years if action isn’t taken to address the shortage of burial space in NSW.
In a bid to deal with the rapid depletion of burial space available, the changes allow cemeteries (the majority of which are owned by private entities) the option to offer a “renewable internment right” for a minimum of 25 years and a maximum of 99 years on burial pots. After the initial 25 years, the family of the deceased person can pay a fee to the cemetery to renew the right for a further 5 years at a time. The Regulation imposes certain conditions on the cemetery operators to notify the family members of the upcoming renewal by letter, telephone, email, Facebook and Twitter, as well as circulating details in a local newspaper. However, if the family cannot be contacted and the renewal fee is unpaid at the end of the lease term, the remains of those buried in the “renewable” plots will be exhumed and re-interred at a greater depth or placed in an “ossuary house”.
Looking to the future
The traditional internment right where the remains of a person are left undisturbed (now known as a “perpetual internment right”) can still be purchased, but the speculation is that these burial sites will be much more expensive than the “rentable” alternative. The enforcement of this Regulation will, according to Mick Veitch, opposition member of the NSW Legislative Council, lead to two classes of burials: ‘permanent monuments for those who can afford it and those who can’t afford it will be forced to see their loved one dug up’.
Whilst renewable internment is not compulsory, the fear of the general public is that many cemeteries will seek to reduce, if not completely eliminate, the number of perpetual internment plots available to increase their income. Public responses to the new Regulation suggest that Australian’s are mostly concerned with the State Government’s failure to invest in space for new cemeteries and are outraged at the thought of being put through the emotional distress that is continuing to come up with the funds to keep their loved ones in what they thought to be their final resting place. It should be noted however that at this time, the Regulation does not apply retrospectively, and all existing burial sites will continue to remain exactly as they were prior to the law change.
The Legislative Council Regulation Committee is currently carrying out an inquiry into the Cemeteries and Crematoria Amendment Regulation 2018 and has recently taken submissions from stakeholders and interested members of the public. The Committee will examine the impact of the Regulation and its effect on traditional internment rights, renewable internment rights and the ongoing responsibilities of cemetery operators in managing the cemetery. The Committee met on 21 September 2018 and will deliver its final report by the end of October 2018.
For further information contact:
Kaisha Gambell
Lawyer
kaisha@couttslegal.com.au
02 4647 7447
This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.
