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Burial And Cremation Bill 2019


Cassy O'Connor MP

Cassy O'Connor MP  -  Tuesday, 15 October 2019

Tags: Cemeteries, Legislation, Anglican Church

Ms O'CONNOR (Clark - Leader of the Greens) - Madam Speaker, I rise on behalf of the Greens to speak on the Burial and Cremation Bill 2019 and to indicate that in broad terms we support this legislation. However, we are proposing an amendment to deal with the issue Ms Dow was talking about in relation to the use of private land for cemeteries. I believe our amendment is a very simple and straightforward amendment and I do not think we should have to wait until the bill gets upstairs before we seek in this place as the House that tests legislation to put forward an amendment. I will circulate that to you shortly.

In some ways, this legislation is a further legislative consequence from the Royal Commission into Institutional Responses to Child Sexual Abuse and the fact that church institutions in Australia were found to be culpable in the sexual abuse of children. That requires of them a commitment to seek to make amends in some way or another and to make provision for the compensation of the survivors of past sexual abuse.

As a consequence of that, about the middle of last year, the Anglican Church in Tasmania announced they would be selling church properties, including cemeteries, in order to fund redress. That created a completely understandable level of concern in the community about how safe or protected those cemeteries that hold family histories in them are in Tasmania if they happen to be cemeteries that have been attached to an Anglican Church and managed by the Anglican Church.

As a consequence of that community concern, we debated the first set of changes to the 2002 act late last year. This is stage two of the bill. In noting that when I was reading through this bill last night, I thought to myself if only this Government could have such a prompt response to the community concern about the lack of action on climate. We have had rolling student strikes and a general strike in the past year demanding governments take meaningful action on climate. We have had Extinction Rebellion activists arrested outside this parliament this morning. Like the tens of thousands of people who were striking for a safe climate, those older ladies, if you like, who were knitting their 'tell the truth' scarves are demanding of this parliament and of governments, action.

Regrettably, there has not been the same rush to deal with that level of community concern about a far bigger challenge, I would argue, than burials and cremations going forward. That has not translated into any sort of legislative or policy response, indeed the opposite. We have a government that wants to dig up coal and log old growth forests from April next year. I had to say that. It is said.

I thank the members of the department who briefed us on this bill yesterday. It is substantial legislation that replaces the entire Burial and Cremations Act 2002 and I commend the department, the director of Local Government, Danielle, for the work they have put into the bill that we are debating today. It is a thorough piece of work. Having been through the consultation documents, I acknowledge that a number of the issues raised in the consultation have been incorporated into the bill we are debating today, from a draft that went out earlier this year.

That said, the concerns that were raised by the Anglican Church have, in large part, not been dealt with. I place on the record that it is hard to escape the conclusion that the initial amendment bill to the 2002 act and this replacement legislation have been, in some ways, punitive towards the Anglican Diocese in Tasmania. It feels a bit like a political decision was made to show the Anglican Church who was boss. When you have a look at the submission made by the Anglican Diocese of Tasmania in July this year, there is manifest frustration that the concerns that have been raised by the Diocese and Bishop Condie last year were not responded to. Then there is a draft that goes out for consultation and the Anglican Church responds to that draft and, of the four recommendations that the church has made, only one has been incorporated.

For the record, I will read into the Hansard some of the issues raised by the Anglican Diocese in July. The Diocese is concerned about the impact on access to burials due to the increased costs of operation and in response to a point that Ms Dow made about the cost of funeral services of burials and cremations, I am not sure it is in any way within the Government's power to place a heavy hand on what costs cemetery managers or institutions charge for funeral services, burials and cremations. It is a market, if you like, and when someone loses someone they love, there is a range of choices to be made, but for people on low incomes the costs are prohibitive.

As a small personal diversion, my mum died in May. She did not want a flashy funeral, she did not want a priest anywhere near her, but when I was doing the ring-around to find a funeral service the minimal cost was about $7000. My family was lucky because I was able to pay for that but there are families who cannot.

Ms O'Byrne - I think people use GoFundMe for them.

Ms O'CONNOR - Yes; the cost is so high it is extraordinary. That $7000 was just the bare bones of the service that was provided, so it is very expensive. I understand why some families have to use GoFundMe or borrow and go into debt in order to give someone they love the send-off they feel they deserve.

The Anglican Diocese of Tasmania states in its submission that it continues to be concerned about the impact of the changes from December 2018, which they say are repeated in the draft bill, to access to burials and cemeteries across the state. For almost the entire history of the Anglican Church in Tasmania, cemeteries have been managed on a volunteer basis by members of the church community. This has been possible in the past due to the fact that almost all members of the European community in Tasmania were considered members of the church community so there was a very strong volunteer base. In the past few decades, the volunteer base of the Anglican Church community has shrunk dramatically and in many parts of the state, the church community is simply too small and too elderly to continue to care for burial grounds. The physical maintenance of the site as well as the administrative burden is beyond many parishes. In some parts of the state, cemeteries have been managed and maintained by community members who do not otherwise have any connection with the church.

While this is a helpful means of keeping costs down, the increased regulatory and enforcement burden that rests on the trustees of the Diocese of Tasmania, who are the legal owners of the Anglican cemeteries and therefore the managers of those cemeteries, means that we can no longer leave care of burial grounds to volunteers disconnected from the Anglican Diocese. To do this would be to neglect their obligations.

The necessary professionalisation of cemetery operations is one aspect that will drive up costs. The two other aspects of the 2018 review that will significantly impact on costs are the longevity of cemeteries and the removal of the capacity for cemetery managers to make changes to the cemetery if funds run short, which is the now repealed section 26 of the Burial and Cremation Act 2002.

The Anglican Diocese notes that the current legislation relating to the longevity of a cemetery creates a time period between the last burial and the closure of the cemetery that is the longest in Australia. It is excessively long, as anyone who had known a person buried in the cemetery would in all likelihood have died themselves. The requirement for regulator approval to close a cemetery is more than adequate to address the supposed problem of cemeteries being closed too soon after the last burial. The Anglican Diocese therefore recommends that the bill be amended to restore the time period of 30 years between the last burial and the capacity of a cemetery manager to apply to the regulator for the closure of the cemetery.

The legislation we are debating today maintains those provisions about the closure of a cemetery 50 years after the last interment and sale after 100 years. The Anglican Diocese states that:

In our submission the removal of the capacity for cemetery managers to take steps in the event of insufficient funds adds to cost and this situation has moved too far in limiting the capacity of cemetery managers to properly operate the business of the cemetery. Any other business that is limited by financial resources is able to cease trading. The current regulatory regime for cemeteries effectively compels a cemetery manager to continue operating a cemetery for anywhere between 50 and 100 years without being able to take reasonable steps to limit expenditure. This limitation creates an environment where cemetery managers must adopt a highly cautious approach to future outgoings. This will drive up costs for burials.

This is straight from the Anglican Church of Tasmania's submission. They say this will drive up costs for burials.

The ADT recommends that the obligation to maintain a cemetery in good repair be amended to an obligation to maintain a cemetery in a reasonable state of repair, given the nature and size of the cemetery, the financial and volunteer resources available to the cemetery manager, the location of the cemetery, the level of activity in the cemetery and the length of time since the last burial. Again, that recommendation by the Anglican Diocese of Tasmania was not taken up.

The ADT further recommended that the state Government legislate to mandate that local councils take on cemeteries in their municipal area at the request of the present cemetery manager. The ADT further recommends that the Government provide appropriate financial assistance to councils to enable this to happen at minimal impact to the councils. That recommendation was not taken up and I understand that there are potential costs associated with that.

I note that the concerns raised by the diocese in relation to being able to negotiate the potential sale of a cemetery have been softened and that the recommendation made by the Anglican Church in this instance has provided greater flexibility over the capacity for a cemetery manager to begin negotiating the potential sale of a cemetery before it has had an audit undertaken by the regulator and been given approval to pass on. That is a positive, but I would like to hear directly from the minister because while we raised the concerns of the Anglican Church in the briefing yesterday and received reasonable responses, to have a direct response to those concerns raised by a key stakeholder here from the minister in parliament would be useful and helpful.

In terms of the broad effect of this act, we recognise that these changes increase the protection of cremated remains by providing for exclusive right of interment in monuments. They align the requirements for crematoria and regulated businesses with those for cemeteries. They beef up the compliance and enforcement powers by allowing the regulator to request an audit of a cemetery, crematorium or regulated business, requiring manages to notify the regulator if they become aware that their business is not listed on the register held by the registrar, the regulator, and new and increased penalties for non-compliance. These changes allow the regulator to approve a person other than a body corporate to purchase cemeteries that were purchased by individuals under the previous legislative framework.

In his second reading speech, the minister makes it clear that some of these changes in relation to people who purchased properties before the law change mean that they will be able to sell the properties to somebody other than a body corporate, but you have had a response here in the legislation to four property owners who raised a concern about the potential impact on the sale price of being restricted to selling a cemetery to a body corporate. Four representations were made and there was an adjustment in the legislation in response to those concerns.

Yet matters which have been raised repeatedly by the Anglican Diocese of Tasmania have been largely dismissed, which brings me back to my original point: I believe there is a punitive subtext to this legislation which is about showing the Anglican Church of Tasmania who is boss and responding to community concerns about the Anglican Church selling properties in order not only to meet its redress costs but also obviously to put the Diocese into a more sustainable financial position. I ask the minister why is it that you can have a swift legislative response that allays the concerns of four individual property owners but all the concerns, bar one, raised by the Anglican Diocese of Tasmania have been ignored? The parliament needs an explanation for that.

The one change made in response to the Anglican Diocese's submission clarifies that cemetery owners may participate in non-binding presale negotiations, and that these amendments clarify that cemetery managers may lease a cemetery on publicly-owned land. Regulations will be drafted to complement this bill and clarify the intent of its provisions, but it is the same concern that has been raised by Ms Dow in relation to the capacity for cemeteries to be leased or owned and operated on private land.

We have an amendment to clause 32, which we amend by leaving out the words 'from a state or a council' in subclause (2), which means we are agnostic as to whether it is public or private property. The amendment we are proposing removes the qualifier in clause 32(4)(c)(ii), that only allows a cemetery manager to lease land from a council or the state. This allows for the private lease of land for a cemetery. This will allow for greater competition, particularly for smaller operations, and will provide price competition and increased options for burials. Given that we have been advised by one of the largest cemetery owners/managers in the state that these changes will drive up costs, this parliament should be doing everything we can to diversify the mix in order to provide that market competition and potentially provide low-cost burial options for people who have lost someone they love.

The rationale provided in our briefing for limiting leasing arrangements to state and council-owned land, to be honest, Madam Speaker, was not that compelling and the issues raised, we believe, are manageable. It was put to us that in a private leasing arrangement, the landowner could sell the land to a person who would not necessarily want a cemetery on their land. Private landowners have legal requirements and what they want to do with the land is irrelevant. It was suggested that purchasers of private land with leasing arrangements may not understand their obligations or information may not be disclosed on sale. Again, with education and enforcement, these are solvable problems.

We are not convinced that there is any compelling argument to limit leasing arrangements to state and council land. We note that the act requires a cemetery to be kept open for 50 years after the last interment and the land cannot be repurposed for 100 years after the last interment. These onerous requirements limit any potential risks that may exist under private leasing arrangements. I can indicate that we want to go into Committee and have this amendment debated because it is unarguable that it is an improvement to the bill. We would like to see it passed.

Ms Dow raised the issue of natural burials and the minister touched on it in the speech. I note that there is a specific provision in the bill but I want to raise some of the issues highlighted by advocates for natural burial who I have sat down with and, I am sure Ms Dow has too, it is quite a journey. I remember going out to the Royal Hobart Show three or four years ago and there was a wonderful woman there called Bec Lyons, who has a company called You n' Taboo. That is where I really learned about natural burials and shrouds. My Mum would have been happy being cremated in a cardboard coffin but those options were not available. The only coffin that we could find for the cremation that was anywhere near green enough still had plastic handles. We need to be providing the greatest possible choice to people in determining how we want our remains to be dealt with and how family want their family's remains to be dealt with. There is much to be said for encouraging natural burials. This is something the Director of Public Health would need to be involved in. It would be helpful if the minister could explicitly detail to the House how this legislation does not discourage natural burials.

The concern raised by advocates of natural burials, including Rebecca Lyons, Lyndal Thorne and the North West Environment Centre, is that in establishing a stricter legal framework for burials and cremations we have made it harder for practitioners of natural burials to undertake their work. I would appreciate the minister dealing specifically with the issue of natural burials.

I note that the very busy Director of Local Government will continue in the regulator role and has a very large administrative load. The legislation makes provision for the regulator to be some other person than the Director of Local Government but that Mr Tay, bless him, will continue in the role at this time.

Ms Archer - He is blushing.

Ms O'CONNOR - He is a very hard worker.

I wanted to remind the House that for Aboriginal people this legislation is an abstraction in many ways because the sacred remains of Aboriginal people were taken from family and friends. They were dug up, removed, sent to places like the British Museum, and those sacred remains were treated like the property of colonial governments and used for science. I remember, as a young-ish journalist, being at Hobart airport when Michael Mansell and the Aboriginal Centre came back to Tasmania with the first remains that had been returned by the British Museum. That was in about 1990, which was nearly two centuries after the first Europeans arrived on this island and the persecution and dispossession of Tasmania's Aborigines began. For anyone who has not read the history to understand what happened to some Aboriginal people's remains, I highly recommend The Fate of a Free People by Professor Henry Reynolds, or The Aboriginal Tasmanians by Lyndall Ryan. If you read those books you will get some sense of how disrespectful and offensive it was for our predecessors, as non-Aboriginal Tasmanians, to treat the remains of Aboriginal people in the way that they did.

With those few words, and if the minister could answer the questions that would be excellent. We will be going into Committee and I will now distribute the amendment.