Cemeteries Legislation Amendment (Unused Burial Rights) Bill
Page: 18522
Second Reading
The Hon. IAN MACDONALD (Parliamentary Secretary) [3.55 p.m.]: I move:
That this bill be now read a second time.
I seek leave to have the second reading speech incorporated in Hansard.
Leave granted.
Lands were set aside for cemeteries in New South Wales under four broad forms of management: Crown land cemeteries under the administration of my portfolio as Minister for Land and Water Conservation, Crown Cemeteries under the administration of local government councils, church cemeteries and private cemeteries.
Cemeteries on reserved Crown or dedicated lands are managed by trusts appointed by me as Minister for Land and Water Conservation under the Crown Lands Act, 1989.
Many other cemeteries across New South Wales also on reserved Crown or dedicated lands are under the administration of my colleague the Minister for Local Government as the management of these cemeteries has been vested in the respective local council as trustee.
Church cemeteries are located within Church grounds and are under the control of various religious denominations.
They are generally of limited capacity and are therefore of little consequence in the context of the needs of metropolitan Sydney and the Newcastle populations.
There are seven large private cemeteries in Sydney, Newcastle and Wollongong.
Four provide a full range of cemetery services while three operate exclusively as lawn cemeteries.
Other private cemeteries comprise family burial grounds and isolated graves on freehold properties across the State.
It is of significant importance that I now bring this Bill before the Parliament.
Burial capacity in Crown Cemeteries in Sydney and Newcastle that come under my control as Minister for Land and Water Conservation is reaching the critical stage.
The pressures of an ever increasing population and the lack of available, suitable Crown land to service the metropolitan populations will mean that some existing Crown Cemeteries, such as the Rookwood Necropolis will be generally exhausted in 20 to 30 years.
Another consideration that cemetery trusts must now take into account is the Threatened Species Conservation Act.
The importance of this Act is undeniable, however lands that were set aside for further burial sites must now satisfy the provisions of this legislation.
As you may appreciate, many cemeteries across the state have native vegetation in near pristine condition that provides habitat for native fauna.
In this regard the Rookwood Anglican Cemetery has advised that most of the remaining land available to that trust for burials will not be able to be cleared.
This means that the estimated burial capacity of that trusts reserves has been reduced by an estimated 13 years with none available after 2017.
Several years ago it became apparent that pressures being imposed on the medium to longer term of these Crown cemeteries had to be addressed.
As a consequence, a discussion paper, "Revocation and Reallocation of Rights of Burial to Unused Gravesites", April, 1998, was placed on public exhibition for two months from May, 1998, for consideration and comment.
Copies were also forwarded to key interest groups (all MPS, funeral industry, relevant government authorities, and key interest groups including for example National Trust and the Public Trustee).
While cemetery trusts have the legislative power to buy back unwanted rights of burial from owners, they do not have the legislative power to revoke and reallocate rights of burial where the owner is deceased and there are no heirs or assignees to claim the right of burial.
As you might expect, there was strong support from the respondents for the revocation and reallocation of unused gravesites which were granted more than 50 years ago.
Issues which attracted most attention and considered to be most contentious were:
• Methodology to be used in an attempt to locate owners of unused grave plots sold more than 50 years ago;
• Level of compensation to be paid to owners should a plot be revoked; and
• Whether plots can be resold on a 'pre-need' basis.
There was strong support for the revocation and reallocation of unused grave sites which were granted more than 50 years ago.
Earlier this year the Returned Soldiers League and Legacy argued that the period should extend further to take account of the interests of the families of all war veterans. The period has been extended to 60 years to accommodate these needs.
The representations resulted in the development of the methodology for inclusion in the subordinate legislation as well as the provision of limited compensation.
It was decided that prior to revocation it was up to the cemetery trust and the owner of a burial right to enter private negotiations for a voluntary buy back of the right.
It is only after much careful and considered deliberation that this Bill—Cemeteries Legislation Amendment (Unused Burial Rights) Bill 2001—sits before us here today.
Before I detail the content of the Bill I would like to highlight the most significant features of the proposal bearing in mind the facts that I have already outlined in relation to the undeniable pressures on available burial land within the Crown cemeteries estate, and they are:
That this proposal will provide for increased burial capacity in the short to medium term for Crown cemeteries within the Sydney/Newcastle areas that come under my administration.
That this Bill seeks the amendment of relevant legislation to authorise trusts responsible for these Crown cemeteries to revoke exclusive rights of burial for gravesites that have never been used and were generated more than 60 years ago.
The provision of uniform and comprehensive search requirements across all relevant cemeteries by the respective trusts to give the same opportunity for all 'rightful owners' to advise of their continued interest in the sites.
To provide a uniform and adequate level of compensation across all relevant cemeteries should a claim be made by an 'owner' once the exclusive burial rights of a site have been revoked.
There are up to 30,000 unused gravesites in Sydney Crown cemeteries that were sold prior to use more than 60 years ago.
At Sandgate Cemetery (Newcastle) this figure is in excess of 2,000. Over the next few years these figures are anticipated to increase.
As an example, the Botany Cemetery advised that in 1993 there were 3,500 unused sites pre-sold more than 50 years ago.
This figure is now 4,500.
At Rookwood, the Joint Committee of Necropolis Trustees' statistics show cremations are 29% of internments in 1941 with a steady increase until 1963 when they were approximately 50% compared to burials.
This trend may indicate an increase in the number of graves reserved and not used as cremation was becoming more popular.
Collectively the cemetery trusts estimate that the revocation and reallocation of unused burial rights could generally extend the operation life of the existing Crown cemeteries by approximately 5-10 years by increasing stocks of grave sites by 15-20%.
In more detail then, the purpose of this Bill is to make amendments to the Necropolis Act 1901 so as to allow the body of trustees for a cemetery at Rookwood to revoke burial rights.
The trustees' power will operate in relation to burial rights granted by a trust that have never been used and remain unused for more than 60 years.
The Bill also provides for the compensation of holders of burial rights revoked by the trustees in those circumstances.
The Bill also amends the Crown Lands (General Reserves) By-law so as to allow the reserve trust for any other public cemetery to revoke burial rights it has granted if they remain unused for more than 60 years, and to provide for the compensation of holders of burial rights revoked by the trust in those circumstances.
The Bill also makes minor, consequential and ancillary amendments to the Crown Lands Act 1989 and the Land Acquisition (Just Terms Compensation Act) 1991.
NEW PROCEDURES
The Bill amends the Crown Lands (General Reserves) By-law so that a cemetery trust at Rookwood or other cemeteries regulated by the By-law are able to ascertain whether there are lawful claimants to the burial right before revoking that right.
The process for calling for rightful owners to come forward to claim unused burial rights will be set out in the subordinate legislation.
It will reflect a comprehensive process and will involve two rounds of advertising in newspapers and at the cemetery itself over a period of about 8 months.
The cemetery trust must undertake the following actions before revocation action can take place.
First, a notice is to be sent to the address as shown in the Register of Burial places to the recorded owner by registered mail.
Twenty eight days later, notification is posted at the cemetery and in newspapers.
This notification will include posting of notices at the cemetery office, and all entrances to the cemetery, and at the gravesite.
It will advise that the exclusive unused burial rights granted more than 60 years ago will be revoked and resold unless the current owner comes forward.
Notices will also be advertised in a local and in national newspaper calling for the rightful owner to contact the cemetery trust.
After six months has elapsed, follow up notices will reappear in those newspapers advising that the burial rights will be revoked after 28 days and resold unless an owner advises the cemetery trust of their claim for a particular site.
If no claim is made as to ownership of the site, the cemetery trust may then revoke the burial right and this will be formalised in the Government Gazette.
This allows the trust to then resell the burial plot to another person.
Should a rightful owner come forward after the revocation period, the compensation provisions will apply to that claimant.
The period during which a post revocation claim can be made will be limited to six years from the date of the revocation to reflect the normal limitation periods for civil claims.
The period is considered to be more than adequate time to allow rightful owners of the interest to advise their continued interest in the burial right.
The process cannot be commenced until the 60 years after the right was first granted where that right remains unused.
The Bill provides for similar procedures to be made generally in relation to by-laws that can be made under the Crown Lands Act 1989.
COMPENSATION
As stated, the Bill provides a mechanism for compensating the owner of a burial right should that right be revoked by a cemetery trust.
A party who was formerly entitled to the benefit of the now revoked burial rights may claim compensation from the appropriate trust that has revoked that right. Compensation may take either one of two forms.
• Firstly, either the claimant is paid a monetary compensation equivalent to 50% of the fee of a replacement site at today's rates; or
• secondly, the claimant may be offered the provision of a replacement site.
The form of compensation offered to any particular claimant will be at the discretion of each individual cemetery trust, as the opportunity to offer a claimant a replacement site may in fact be limited by the availability of land and may vary from trust area to trust area.
This approach will provide more flexibility for trusts in planning for the future of their cemeteries.
In 1900 exclusive rights of burial were purchased for an equivalent of approximately $1.70 and in the 1970s and early 1980s for around $105.
Now prices can range to over $2,000.
However, it is only in recent times that the figure has included a perpetual care component, opening of graves sold either prior to planned use or headstone contribution.
Also, prices differ from cemetery to cemetery for a variety of reasons.
Given these facts, reimbursement at an amount of 50% instead of 100% of the value is considered reasonable and equitable.
In addition it is necessary to recognise that there are considerable advertising and other administrative costs associated with the search by a trust for the rightful claimant before revocation of the right can take place.
Concerns have also been raised that burial plots should not be treated as 'real estate' whereby unscrupulous heirs or assignees may come forward after a plot has been resold to claim current value.
Hence the decision to limit the level of compensation at 50% of the market value.
In terms of the legal nature of a burial right, the general position in Australia is that a right of burial is not an absolute right of property, but a privilege or licence to be enjoyed so long as the place continues to be used as burial ground and legally revocable whenever the public necessity requires.
It is a right of limited use for the purpose of internment, which gives no title to the land.
There is no right of appeal from the compensation decision made by a trust and no right for compensation under the Land Acquisition (Just Terms Compensation) Act 1991 as the provision for compensation under the Bill is adequate in the circumstances.
POLICY CONTEXT
As I mentioned in opening, the need to provide a power to revoke unused burial rights is a practical response to the increasing pressure for burial land at cemeteries in NSW administered by the Crown, mainly in the Sydney and Newcastle area.
I reiterate that it is estimated that all available capacity will be exhausted within 20-30 years.
In the case of individual cemetery trusts' area, the time frame is much shorter.
For some, available space is currently at a premium. It is therefore crucial that the Government provide a practical short to medium term solution to the pressures for available cemetery land.
This Bill gives cemetery trusts the power to reacquire through revocation, unused burial sites and reallocate them as needed but only in relation to burial rights that remain unused for 60 years.
This long period was chosen to take account of the rights of the families of returned soldiers.
It is estimated that there are up to 30,000 unused burial sites on the affected lands.
The Bill also recognises the rights of owners of burial rights and provides a methodology for adequately compensating them should they come forward after revocation has occurred.
It is expected that this Bill will have the effect of extending the efficient use of individual trusts' cemetery land by 5-10 years on average.
The by-law will provide a comprehensive process for advertising so that the rightful owners will be able to claim their inheritance.
At the same time, by providing an end date to such claims through that process, the trusts are able to gauge with certainty the available space within their cemetery and plan for future operations.
SUMMARY
Changing demographics in New South Wales means that land at existing cemeteries is at a premium.
The Government must assist cemetery trusts to operate viable cemeteries for local communities.
By enabling trusts to free up abandoned and unused burial sites, the Government can support the trusts in provision of these services to meet community needs.
Trusts will have greater certainty as to the availability of burial plots for the medium term and this in turn will ensure that trust records are accurate for accounting and financial purposes.
The new powers will enable trusts to implement strategic plans for the future of their cemeteries and provide adequate compensation for those that may be affected by the revocation.
I commend the Bill to the House.
The Hon. RICK COLLESS [3.55 p.m.]: I lead for the Coalition on the Cemeteries Legislation Amendment (Unused Burial Rights) Bill, which essentially amends the Necropolis Act 1901 to allow the body of trustees for a cemetery at Rookwood to revoke the burial rights it has granted if they remain unused for more than 60 years, and to provide for the compensation of holders of burial rights revoked by the trustees in those circumstances. It seeks also to amend the Crown Lands (General Reserves) By-law 2001 to allow the reserve trust for any other public cemetery to revoke burial rights it has granted if they remain unused for more than 60 years, and to provide for the compensation of holders of burial rights revoked by the trust in those circumstances. The bill also makes minor and consequential changes to the Land Acquisition (Just Terms Compensation) Act 1991 and the Crown Lands Act 1989. There are many unused burial sites in cemeteries that were paid for by people more than 60 years ago which, for various reasons, have never been used.
This bill attempts to release these burial sites so they can become available for use. I note with concern some comments in the Minister's second reading speech that indicated that native vegetation issues have reduced the availability of burial sites within cemeteries. It is an indictment that native vegetation should take precedence over the rights of humans, particularly relatives who have lost a loved one. It was inappropriate of the Minister to introduce native vegetation matters in debate on a topic as personal as cemeteries. Cemetery trusts have the legislative power to buy back the unwanted rights of burial sites from owners but they do not have the power to reallocate or revoke burial rights where the owner is deceased and no heirs or successors can be located. This bill attempts to remedy that situation.
There are four significant features of the bill. First, the bill will create an increased burial capacity in the short term to medium term for cemeteries in the Sydney and Newcastle areas. Honourable members would be aware that as the city of Sydney grows and existing cemeteries become full, there will be a need to maximise the availability of burial sites. The bill also allows for the revocation of exclusive burial rights by cemetery trusts when those rights were granted more than 60 years ago. In many cases the person with the right to a site has passed on and the right to use that site falls to that person's heirs and successors, who may be unaware of the burial right. This bill attempts to provide a uniform and comprehensive search requirement across all cemeteries to ensure that the rightful owners of burial sites are able to express their interest in those sites and to decide whether they wish to utilise or forgo their rights. The bill allows for the payment of compensation if an exclusive burial right is revoked and the rightful owner makes a claim on the cemetery trust. However, that compensation is to apply only if the rightful owner comes forward after the revocation period.
There are about 30,000 burial sites in Sydney that were sold prior to use more than 60 years ago and may be eligible for this program. It is estimated that this legislation could increase the life of some cemeteries by five, 10 or 15 years. That figure will probably increase as time passes as cremations are becoming more common and have accounted for about 50 per cent of interments since 1963. This compares with some 30 per cent in the early 1940s. This program will release many sites that may never be claimed by their rightful owners.
The Opposition is concerned about some aspects of the bill, particularly the value of contingent liabilities for some cemetery trusts. For example, Sandgate Cemetery in Newcastle has some 2,000 burial sites that are more than 60 years old and that are worth $2,000 per site at today's market prices. That represents a contingent liability of $4 million. While we believe that the owners of such sites should be compensated for their full market value, we understand that it is unacceptable and unreasonable to expect cemetery trusts to show the full cost of that contingent liability in their financial records. The Opposition intends to move an amendment in that regard in Committee. The Opposition does not oppose this bill, which we believe offers a practical, workable solution to a problem affecting the cemetery industry in New South Wales as a whole and in Sydney and Newcastle in particular. We have some concerns about the legislation, but we will address them in Committee.
Reverend the Hon. FRED NILE [4.03 p.m.]: The Christian Democratic Party supports the Cemeteries Legislation Amendment (Unused Burial Rights) Bill. It is clear that this legislation has to do not with the persons who are buried in cemeteries but with unused burial sites. The legislation seeks to amend the relevant legislation, the Necropolis Act and the Crown Lands Acts, to authorise Crown cemeteries to revoke exclusive rights of burial granted more than 60 years ago that have never been exercised. There are apparently up to 30,000 unused grave sites in Sydney's Crown cemeteries that were sold prior to use more than 60 years ago. At Sandgate Cemetery in Newcastle this figure is in excess of 2,000, and is expected to increase in the next few years. For example, Botany Cemetery advised that in 1993 there were 3,500 unused sites that had been sold more than 50 years ago. This figure is now 4,500.
These burial sites have not been used perhaps because deceased persons gave instructions in their wills to be cremated rather than buried. Cremations accounted for 29 per cent of all interments in 1941, and that figure increased steadily until 1963 when the figure was 50 per cent. This trend equates to the increasing number of graves reserved and not used with the increasing popularity of cremation. That deduction is probably correct. The legislation is strongly supported by the funeral industry, particularly the Crown cemetery trusts that wish to see the revocation and resale of unused burial sites granted more than 60 years ago. However, in November I received a letter from Alan Brown, Chief Executive Officer of the Rookwood Independent Cemetery, in which he states:
The Independent Cemetery Trust welcomes the approval of legislation changes to allow cemetery trusts to revoke exclusive burial rights where those rights have never been used and were granted at least 60 years ago.
However we disagree with the fact that the public may be able to claim compensation of up to 50% of the value of a replacement site at today's rates. Many of these graves would have been purchased for the equivalent value of $2.00 at today's price …
The Independent Trust currently purchase burial rights back from the public at a price determined by Trust management with a ceiling set at no greater than $200.00, and to date this has worked effectively.
Mr Brown said that since the intention to introduce this legislation was announced his office:
… has been besieged with telephone calls from ancestors who purchased gravesites 60 - 100 years ago.
To validate their lineage/ownership of gravesites and the amount of funds originally allocated for the perpetual care of the cemetery will be a huge financial burden on all Trusts affected by this legislation together with the additional cost of advertising the revocations and administering the Act.
We must recognise that trusts will resell burial sites at the current commercial rates—they will sell them not for $2 or even for $200 but for thousands of dollars. I suppose that prices will vary according to the location of the site and so on. I understand that the RSL lobbied the Government to increase the time span from 50 years, as originally proposed, to 60 years, and we support that change. It is hoped that this legislation will extend the life of cemeteries by five to 10 years. We agree with the Hon. Rick Colless, who said that it seems strange that owing to environmental concerns the Anglican cemetery at Rookwood has lost a great area of land that it had set aside for burials. I believe the burial of human beings should take precedence over any concerns about species of fauna that may have moved into the cemetery area.
For that reason, I would certainly support legislation that exempted cemeteries from environment legislation. That is the only way we can operate. Obviously, grass, bushes and trees will grow over unused areas of cemeteries and they will then become a protected environment. We would support legislation that approved cemetery sites set aside with clear boundaries being exempted from environment legislation. We support the bill and agree with the Opposition's concerns that so much land apparently now cannot be used because of the provisions of the threatened species legislation.
The Hon. RICHARD JONES [4.10 p.m.]: The burial capacity in Crown cemeteries in Sydney and Newcastle is said to be reaching a critical stage due to population increases, lack of available and suitable Crown land, and restrictions imposed by the Threatened Species Conservation Act. Rookwood Necropolis, for example, is expected to be generally exhausted in 20 to 30 years and most of the land available to the trust operating the Rookwood Anglican Cemetery cannot be cleared. While cemetery trusts can buy back unwanted burial rights, they have no power to revoke and reallocate unused plots. Therefore, this bill authorises Crown cemeteries to revoke and resell some 30,000 unused exclusive rights of burial that were granted over 60 years ago in order to extend the life of cemeteries by five to 10 years.
While Crown cemetery trusts must compensate the holders of burial rights for any revocation by either providing them with an alternative burial place or an amount equal to half the fee payable for the granting of exclusive rights of burial, it is not clear whether the holder of the right can choose to retain it if they come forward prior to revocation. Those who come forward after revocation of a burial right could also unfairly benefit from being provided with an alternative burial place and transferring or trading that place soon afterwards. The concept of reallocating rights of burial to unused grave sites is strongly supported by the National Trust.
The trust not only made a submission in support of the reallocation of rights of burial to unused grave sites via a discussion paper in April 1998, but more recent inquiries with the trust's cemeteries adviser, Dr George Gibbins, revealed that the changes proposed in the bill are not really any different from those proposed in that discussion paper, and that the only concern would be the possibility of inappropriate monuments being established in old parts of cemeteries and the resultant adverse effects on heritage values. However, the bill allows managers of cemeteries to include conditions on the resold burial rights to guard against that. Dr Gibbins indicated also that the trust would like to see the bill passed on conservation grounds as cemeteries need to have an income if they are to effectively maintain the conservation and heritage values of their lands.
The bill is strongly supported also by the Catholic Cemeteries Board, so much so that the board believes the bill should extend to cemeteries under the Local Government Act and privately owned cemeteries. However, the board is of the opinion also that the bill should limit the obligations of the cemetery trusts to bring to account the contingent liability to pay compensation on the grounds that this would render some cemeteries almost insolvent. The board has suggested also that specific provision be made in the bill for no right of appeal from the compensation made by a trust in order to prevent the prospect of endless minor pieces of litigation, and has registered its opposition to any suggestion that reserve trusts pay 100 per cent of the current market value of the rights of burial as compensation.
The board has opposed reserve trusts paying 100 per cent compensation on the grounds that they place 40 per cent of the sale of proceeds of burial rights in a Perpetual Care Fund for the physical care of cemeteries in perpetuity, and 100 per cent compensation would leave no funds to pay for advertising, administration and holding costs incurred by cemeteries, and the ongoing care and maintenance of cemeteries, which would result in a cash loss to cemeteries. I understand that the Opposition will move amendments in Committee that limit the obligations of the cemetery trusts to bring to account the contingent liability to pay compensation—which I support—and to ensure that reserve trusts must pay 100 per cent of the current market value of the rights of burial by way of compensation, which I am unable to support.
The Government will move amendments that will allow for a Minister's right of review of a trust's decision about the type of compensation offered—which could then be appealed to a court if the correct process is not followed—and will limit the obligations of the cemetery trusts to bring to account the contingent liability to pay compensation. None of these amendments addresses recognising the rights of owners to retain burial rights should they come forward to claim them prior to revocation and ensuring that those who come forward after revocation of a burial right do not unfairly benefit through transferring or trading their alternative burial places soon after taking ownership of them. Therefore, I will move amendments in Committee that ensure that the holders of burial rights can retain those rights to a particular cemetery if they come forward during the advertising period prior to revocation and any replacement plot cannot be transferred or traded for five years. I understand that the Government will support my amendments, and I urge all honourable members to do so.
Ms LEE RHIANNON [4.15 p.m.]: The Greens believe that this bill is a good and practical solution to a problem confronting our society. It is an increasing problem because many people or their families have stipulated their wish to be buried. When I was reading this legislation I wondered what will happen in this place 20 or 30 years from now when we really have run out of land. However, for the moment we believe that the Government has come up with a practical way to extend the life of our cemeteries. There is a need to provide increased burial capacity in Crown cemeteries. We understand at the present time that there are about 30,000 unused grave sites. Therefore, mobilising this land in a way that recognises people's rights will give us some breathing space, so to speak.
I believe that the cemetery trusts estimate that this bill will extend the operating life of existing Crown cemeteries by up to 10 years. Therefore, it is certainly worth getting organised to achieve that. We believe this proposal is a fair system. If it eventuates as we read, it can be seen that every effort will be made to find those who own these unused plots. In relation to the six-month period, we support the proposal that if people choose not to take an alternative plot, they can take up the other option of receiving 50 per cent of the value of that plot. We believe it is sensible and reasonable to pay 50 per cent of the value because the trust will have been involved in quite a deal of expense in trying to find the owners of the plots.
Some people have been in touch with the Greens and have expressed concern about this legislation. We heard of one very sad case in Wollongong where a plot had been sold, but I understand that it involved a private cemetery and that it could not happen at cemeteries on Crown land. The case involved a couple who had two plots together. The husband died at quite a young age and was buried. When his wife died in her late nineties it was discovered that the remaining plot had been sold and she ended up being buried miles from her husband, which caused much angst to the family. However, through the provisions of this bill that sort of problem will not be encountered. I understand also that family crypts will not be scooped up in this legislation. The Greens thoroughly checked the concerns that were raised and determined that this is a good and practical solution to the problems cemeteries face. We are pleased to support it.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [4.18 p.m.]: This seems to be a reasonably practical bill with reasonable compensation for people who do not realise that their burial plots will be taken over. For example, people may not see the advertisements and they may, at a much later date, ask about their plots. In this instance, they will be given another plot or they will be paid what seems to be reasonable compensation, given that the value of the plot has changed dramatically with inflation and time.
Compared to cremation, the percentage of people being buried is falling. Obviously, the plots of those cremated and not buried will continue to be available. I understand that Rookwood has 10,000 plots and that New South Wales as a whole has a total of 30,000 plots. At $2,000 to $4,000 each, that is $60 million to $120 million. We would like an assurance from the Government that the money will go to the trusts to be used for the perpetual care of the cemeteries. In the past trusts have not had sufficient money to maintain the cemeteries in perpetuity. When a cemetery is full it should continue to be maintained as a place for reflection by the relatives of those who are in the cemetery, as an historical place or a place to write eulogies—country churchyards are places of inspiration.
Cemeteries should not be allowed to go to rack and ruin—the headstones decayed or weathered away and the remaining few that are recognisable stuck on a wall—then turned into a park or sold to a developer. If cemeteries are to be maintained as places to remember our dead and reflect on the mortality of the human race, rather than be sold and developed by successive governments, the money generated as a result of this legislation must go into non-profit trusts responsible for maintaining our cemeteries in perpetuity. In supporting the bill I would like a reassurance from the Government in that regard. I trust that the Minister will confirm that in his reply.
The Hon. DOUG MOPPETT [4.22 p.m.]: The bill is not controversial, but it is worth reflecting on the fact that in 1994 the predecessor of the Department of Land and Water Conservation—the Department of Conservation and Land Management [CALM]—prepared similar legislation. I was part of a backbench committee that followed the development of the legislation. We understood that negotiations with the then Opposition had been extensive and that the matter was advanced in a bipartisan way because of the sensitivity of various people to the right of burial and the need to access places in cemeteries to put the remains of their loved ones. It is sad to note that that bipartisanship broke down. We were on the eve of the 1995 election, and the legislation had to be shelved because the Labor Party was not prepared to support it. The Labor Party buckled to groups in the community that had expressed fears about the ramifications of the legislation for people who held those rights very dear.
It is also interesting to note that at the time it was foreshadowed that the matter was of such urgency that sites would be unavailable at the turn of the century. It is interesting to see the modification of those estimates with the introduction of this bill. However, no-one would be silly enough to suggest that the matter could be deferred again. We must be practical and realise that although there have been changes in the social mores and a great swing in metropolitan areas in particular in favour of cremation of deceased people, burial remains very common in country areas where land is available. This problem does not confront local communities. But in metropolitan areas it is certainly very much a sea of changing expectations. Yet the need remains to maintain cemeteries and provide grave sites when, from time to time, they are demanded.
We must be open minded. I hope, as do many others, that cemeteries will be maintained for as far into future as possible. But at the same time we must recognise that some of the cemeteries that were established very early in the history of this State have already been redeveloped. It was only recently that someone pointed out to me that the Central Railway Station site was one of the early burial sites in the Sydney region. The development of that area led to the subsequent development of the Rookwood site and the invocation of the rather quaint term "necropolis". I am unaware of that term ever having been applied anywhere else. Many honourable members are aware of the extensive railway arrangements at the chapel at Central Railway Station and Rookwood, one of which was shifted to Canberra and is now an Anglican parish church.
For as long as cemeteries are available, they should be maintained. Reference has been made to their historical nature. While I was a councillor in Coonamble shire we had to deal with the redevelopment of the original cemetery in Coonamble. We were more than happy to comply with the requirements given to us by the predecessor of the Department of Land and Water Conservation, CALM, for the storage of various edifices, headstones and other items associated with the cemetery. We made extensive efforts to contact relatives of those who had been buried there, which we followed up meticulously. I am aware that, following developments in 1994 and 1995, quite a number of local councils contacted people in an extensive sweep to establish current names. I was contacted with respect to two vacant plots in South Head Cemetery, which are adjacent to those in which my grandfather and grandmother were buried.
The contact was most courteous. The council assured me at the time that, having been guaranteed the continuing interest of the family, our rights to those plots would be respected by the council within its present regime. I understand that it will have to be reviewed. Demands and pressures bring about changing attitudes from time to time. The important thing is the manner in which people who have these rights are dealt with. Their rights must be respected as far as possible. I also know that in some cases the descendants of people who have reserved these plots will be untraceable. They may not even exist. Provided due diligence is exercised trying to locate them, we must recognise that it is quite proper for the authorities to exercise their rights to reassign those plots and to ensure that they are used.
There is still that demand and people may like to bury their relatives close to where they have lived or where they are accessible to their successors—family and relatives—who may wish to visit the site in the future. Essentially, the wishes of the deceased are paramount. If the deceased wanted to be interred next to a relative or friend, I think as far as possible we would still like that to happen. Where there is no longer any relevance to any living person, we need to have machinery by which those plots are revoked, if you want to use that word, and made available to those who have a need for them.
The Hon. IAN MACDONALD (Parliamentary Secretary) [4.30 p.m.], in reply: I thank honourable members for their contributions to the debate. The passing of the Cemeteries Legislation Amendment Bill will allow the Government to assist cemeteries to alleviate, at least in the medium term, the increasing pressure on burial sites at Rookwood and other Crown cemeteries in New South Wales. It is estimated that, unless action is taken now, burial sites in those cemeteries will be exhausted within approximately 20 years. Cemeteries on reserved Crown or dedicated lands are managed by trusts appointed by the Minister for Land and Water Conservation under the Crown Lands Act 1989. Many other cemeteries throughout New South Wales, also on reserved Crown or dedicated lands, are under the administration of the Minister for Local Government as the management of those cemeteries has been vested in the respective local council trustee.
As I said, burial capacity in Crown cemeteries in Sydney and Newcastle under the control of the Minister for Land and Water Conservation is reaching a critical stage. This bill has the potential to extend the life of these Crown cemeteries in the medium term. Lands that were set aside for further burial sites must now satisfy the provisions of this legislation. The rights of any rightful owners of unused burial sites and the cemetery trusts are provided for under the Act. A thorough search for the rightful owners must be undertaken prior to revocation. This involves a comprehensive advertising process, if this information is not evident from the search of trust records.
During the advertising process, and indeed at any time prior to revocation of the burial right, the true owner may come forward and assert entitlement to that burial right. The trust cannot, in that case, compulsorily sell the burial site. If the owner cannot be located during the advertising process and the right is revoked subsequently, the trust may proceed to sell the right to another, as needed. In the unlikely circumstance that the true owner comes forward after revocation, the Act protects the rights of the former owner by making provision for compensation within the stipulated number of years. After expiry of the time prescribed, the trust will no longer be liable to provide any compensation.
The Government acknowledges the valuable contribution of my good friend the Hon. Richard Jones in moving amendments concerning the rights of the beneficial owners and providing trusts with certainty so they may plan the future of their cemeteries. The Government is unable to support the Coalition's proposal of 100 per cent compensation. The amount of 50 per cent compensation, as provided in the legislation, is considered adequate in light of the past maintenance costs and the substantial advertising costs borne solely by the trusts up until that time. Some trusts have represented to the Government that compensation of less than 50 per cent should be paid. It is the Government's view, however, that 50 per cent is fair and equitable to both the former holder and to the trust.
The Government opposes the Coalition's proposal to allow for contingent liabilities to be removed from a trust's accounting records, as this would be anomalous with provisions in the Crown Lands Act relating to other trusts which manage Crown land. This would set an unsuitable precedent whereby a trust would not be required to make full disclosure and account for contingent liabilities arising from the revocation of unused burial rights. This would result in a trust potentially engaging in unacceptable creative accounting and could result in calls to the Government to bail out some trusts because they did not make adequate provision for those contingent liabilities. The amendment would create an entirely unacceptable situation.
It is considered that the Government's amendment is more in keeping with current accounting standards and will go some way to addressing concerns of trusts as to the recording of contingent liabilities in their records. The Government commends this bill and its potential to extend the life of Rookwood and other Crown cemeteries as operational cemeteries well into the medium term. I commend the bill to the House.
Motion agreed to.
Bill read a second time.
In Committee
Clauses 1 to 5 agreed to.
Schedules 1 to 3
The Hon. IAN MACDONALD (Parliamentary Secretary) [4.35 p.m.]: I move Government amendment No 1:
No. 1 Page 3, schedule 1, line 6. Insert ", or any previous body of trustees for the portion concerned," after "it".
This amendment allows for the fact that trusts operating at Rookwood Necropolis may have changed their name or constitution over the years and that the trust currently managing the cemetery needs the power to revoke rights even though it did not originally grant the exclusive burial rights.
The Hon. RICK COLLESS [4.36 p.m.]: The Opposition will support this amendment, for the reasons outlined by the Government.
Amendment agreed to.
The Hon. RICHARD JONES [4.36 p.m.], by leave: I move my amendments Nos 1, 2 and 3 in globo:
No. 1 Page 3, schedule 1. Insert after line 11:
(6) At any time before the expiry of the period for responding to the notice, the holder of the exclusive rights of burial concerned may enter into negotiations with the relevant body of trustees for:
(a) the sale of those rights to the trustees, or
(b) the retention of those rights.
No. 2 Page 4, schedule 1. Insert after line 12:
(4) Despite section 24 (2), if the former holder of the revoked exclusive rights of burial is granted exclusive rights of burial for an alternative burial place, any assignment of those rights is of no effect if made by the former holder within 5 years after the date on which they were granted.
No. 3 Page 7, schedule 2. Insert after line 5:
(4) Despite clause 29, if the former holder of the revoked exclusive rights of burial is granted exclusive rights of burial for an alternative burial place, those rights may not be transferred by the former holder within 5 years after the date on which they were granted.
Amendment No. 1 makes it clear that the holders of burial rights can choose to either retain those rights or sell them to the relevant cemetery trust if they come forward during the advertising period prior to revocation. Amendments Nos 2 and 3 ensure that any replacement burial plot provided in compensation for the loss of an existing, unused burial right cannot be transferred or traded for five years.
The Hon. IAN MACDONALD (Parliamentary Secretary) [4.37 p.m.]: The Government supports the amendments moved by the Hon. Richard Jones. Amendment No. 1 can be supported because the Government has already implied this in the legislation. However, the amendment seeks to clarify any ambiguity and confirms existing rights of rightful owners should they come forward prior to revocation. With this amendment, a trust will be unable to proceed with revocation where a rightful owner asserts the intention to retain the entitlement. On that basis the amendment removes that ambiguity and the Government supports it. The Government supports amendments Nos 2 and 3. The current legislation does not seek to restrict the rights of assigning to another person those additional rights granted to a former holder after revocation has taken place. This provision gives the trust an assurance that the claimant will use the reclaimed right personally and not take advantage of the new burial right. The amendments are supported by the Government.
The Hon. RICK COLLESS [4.38 p.m.]: The Opposition also supports the amendments.
Amendments agreed to.
The Hon. IAN MACDONALD (Parliamentary Secretary) [4.38 p.m.]: I move Government amendment No. 2:
No. 2 Page 3, schedule 1, lines 15 to 19. Omit all words on those lines.
As currently drafted, clause 24 (a) (1) of the bill may have the effect on one interpretation of removing any entitlement to compensation where the beneficiary of a burial right comes forward after the right is revoked in a cemetery where all available land is committed. This was not the intention of the bill. The intention of the bill is to fairly compensate any person who previously had the benefit of a burial right that becomes revoked because that person could not be located. This will operate regardless of whether there are spare plots. If there are no plots, trusts will have to pay compensation.
The Hon. RICK COLLESS [4.40 p.m.]: The Opposition also supports this amendment. I note that the ambiguity of the wording of the provision was pointed out by the shadow Minister in another place. I thank the Government for taking up the issue.
Amendment agreed to.
The Hon. RICK COLLESS [4.40 p.m.]: I move National Party amendment No. 1:
No. 1 Page 4, schedule 1, line 2. Omit "half of the". Insert instead "the full".
We have a fundamental belief that the owners of burial sites have the right to receive full compensation if their burial right is revoked. We do understand the difficulty or the potential liability that this may bring impose on trustees, but that is covered by the second amendment I will move.
The Hon. IAN MACDONALD (Parliamentary Secretary) [4.41 p.m.]: This amendment is not supported. Its effect would be to amend the provisions that limit payment of compensation to 50 per cent of the fee for a new plot at a cemetery in Rookwood Necropolis. Trusts would be financially disadvantaged if they undertake the expensive process of trying to locate owners of unused burial rights, including advertising costs, only to have to provide market prices to someone who comes forward after all those efforts. Trusts would see no advantage in undertaking the exercise and therefore no new sites would become available, notwithstanding the urgent need for those new plots in the Sydney and Newcastle areas. Additionally, it is recognised that current plot fees include a substantial amount—in the case of the Catholic Cemetery Board 40 per cent—for perpetual care of the cemetery. This component is to provide for the physical care of the cemetery in perpetuity. This fee was not included in plot fees purchased over 60 years ago.
Ms LEE RHIANNON [4.42 p.m.]: The Greens do not support the amendment. We are surprised that the Coalition would move it, because the 50 per cent figure is clearly fair. The trusts will be out of pocket and will incur costs in advertising to owners of plots. Increasing the compensation to 100 per cent of market value could really work as a disincentive for them to carry out the work. We all agree that this process is important. Some trusts will probably pursue it more than others. Pushing the compensation to 100 per cent could ruin the whole object of this important bill.
Amendment negatived.
The Hon. RICK COLLESS [4.43 p.m.]: I move National Party amendment No. 2:
No. 2 Page 4, schedule 1. Insert after line 9:
(3) Any liability of the body of trustees under this section, whether actual or contingent, need not be brought to account in the financial records of the body of trustees until such liability crystallises by virtue of an order of a court for payment.
The concern is that within the accounting system these contingent liabilities will place fairly severe encumbrances on cemetery trusts, perhaps in the vicinity of $4 million. That is what the potential contingent liability could be for Sandgate Cemetery. This would show up as a liability in its financial records and could put at risk the future management of its trust. Some of these contingent liabilities will never be crystallised, yet they will show as a liability on the records of trusts. We believe that these liabilities should not be brought to account until such time as they crystallise.
The Hon. IAN MACDONALD (Parliamentary Secretary) [4.45 p.m.]: The Government cannot support the amendment. It is designed to take into account the concerns of some trusts at Rookwood Necropolis that once a burial right is revoked the potential liability to pay compensation for up to six years thereafter under the bill is a contingent liability in their accounts for that whole period. It is a matter for trusts to take their own advice on how to manage any potential liabilities. It is a matter for each trust to decide when to commence revocation of one or more burial rights in any financial year. This is the choice of the trusts, which must decide their own financial management. A trust that revokes all unused rights would have greater exposure to the effects of contingent liabilities in its accounting records. The responsibility of trusts, whether cemetery or reserve trusts under the Crown Lands Act or the Necropolis Act, is to make full disclosure to the Minister for their liabilities. Cemetery trusts should not receive special treatment that would allow them to disguise their liabilities, contingent or current.
Amendment negatived.
The Hon. IAN MACDONALD (Parliamentary Secretary) [4.46 p.m.], by leave: I move Government amendments Nos 3 to 9 in globo:
No. 3 Page 4, schedule 1. Insert after line 9:
(3) If there is no alternative burial place available, or if there is no applicable scale of fees, the amount of compensation referred to in subsection (2) (b) is to be ascertained in accordance with the regulations.
No. 4 Page 4, schedule 1. Insert after line 15:
(5) A former holder of revoked exclusive rights of burial may apply to the Minister for a review of any election of the relevant body of trustees under this section.
(6) The Minister's decision on such a review:
(a) is final, and
(b) is taken to be the decision of the relevant body of trustees, and
(c) is to be given effect to accordingly.
No. 5 Page 4, schedule 1. Insert after line 18:
[3] Section 37 Regulations
Insert after section 37 (2) (b):
(b1) the accounts to be kept by trustees under this Act,
No. 6 Page 6, schedule 2, line 7. Insert ", or any previous reserve trust for the cemetery concerned," after "it".
No. 7 Page 6, schedule 2, lines 11 to 15. Omit all words on those lines.
No. 8 Page 7, schedule 2. Insert after line 5:
(4) A former holder of revoked exclusive rights of burial may apply to the Minister for a review of any election of the relevant body of trustees under this section.
(5) The Minister's decision on such a review:
(a) is final, and
(b) is taken to be the decision of the relevant body of trustees, and
(c) is to be given effect to accordingly.
No. 9 Page 8, schedule 3.1. Insert after line 11.
(p3) the accounts to be kept by reserve trusts,
Amendment No. 3 allows for a regulation to be made in the future if a cemetery or cemeteries at Rookwood have no plots left. The regulation will provide for compensation of 50 per cent of the market/other rate. It is considered inappropriate to set the market/other rate until such circumstances become imminent. It may be particularly relevant to cemeteries run by individual trusts, taking account of the costs of burial practices and the style and heritage issues affecting each cemetery. A similar provision would be included in the Crown Acts (General Reserves) By-law. In relation to Government amendment No. 4, the bill provides no right of appeal in respect of the type of compensation—that is, a replacement plot or monetary compensation. It is not possible to deny a beneficiary of a burial right entitlement to be heard on matters relating to natural justice under the general law.
The Minister of the day will be empowered to review the trust's decision and make final determination. This amendment will also protect trusts from potential litigation in the Equity Division of the Supreme Court on matters that in reality have minimal financial impact and would impose onerous costs on trusts defending such matters. In relation to Government amendment No. 5, whilst the Opposition's amendment on contingent liabilities could not be supported, the Government recognises that this issue requires special attention in the legislation. No detriment is intended in relation to the right to compensation. The amendment will enable a regulation to be made to recognise contingent liabilities arising as a result of a revocation and to provide methodology for recording this unique contingency in the accounting records of cemetery trusts. The provision will be made in a regulation so that prescribed accounting procedures are flexible. This will accommodate particular needs of trusts that may be affected by the accumulation of large contingent liabilities where a decision is made to revoke a number of burial rights in a given financial year, while other trusts may revoke only a single right or a few rights, resulting in minimal contingent liabilities.
The Government will consult with trusts following the passing of the bill to ensure that their individual requirements are included. Government amendment No. 6 allows for the fact that trusts operating in a Crown cemetery may have changed their names or constitution over the years. The current management trust of the cemetery needs the power to revoke rights even though it did not originally grant the exclusive burial rights. Government amendment No. 7 was moved because clause 31B, as currently drafted, may have the effect on one interpretation of removing any entitlement to compensation when a beneficiary of a burial right at a Crown cemetery, where all available land is committed, comes forward after the right is revoked. That is not the intention of the bill. The intention is to fairly compensate any person who previously had the benefit of a burial right that is revoked but could not be located. Further, if there are no plots, trusts will have to pay compensation. The Government believes that the other two amendments are quite self-evident. I am sure all honourable members can understand the intent. I commend the amendments to the Committee.
The Hon. RICK COLLESS [4.51 p.m.]: The Opposition will not oppose the amendments, but I would like to record some concerns we have with them. In relation to amendment No. 3, the Opposition has a fundamental concern that the compensation referred to in section 2B is to be determined in accordance with regulations. However, given that the incidence of such compensation is likely to be small, because it applies only when there are no alternative burial places available, or if there is no applicable scale of fees, we are obviously talking about cemeteries that have closed down, and that will not be a huge impost on the community. The Opposition is concerned about the wording in amendment No. 4. I draw attention of the Minister to subsection (5), which states:
A former holder of a revoked exclusive rights of burial may apply to the Minister for review of any election of the relevant body.
I wonder whether "election" should be "decision"?
The Hon. Ian Macdonald: Parliamentary Counsel has advised that "election" is the appropriate word in the circumstance.
The Hon. RICK COLLESS: I wonder why "election" has been used. It would seem to me that "decision" would be better. I will not pursue that issue. The Opposition supports the amendments.
Amendments agreed to.
Schedules as amended agreed to.
Title agreed to.
Bill reported from Committee with amendments and passed through remaining stages.