Burial, cremation and donation of remains
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The law concerning burials and cremation is contained in the Cemeteries and Crematoria Act 2003 (Vic) (‘C&C Act’), and the section references in this and the following ‘Cremation’ sections are to that Act, unless otherwise specified.
The price of burial is generally more than that of a cremation (the price of headstones and monuments greatly add to the cost). However, the cost of a grave is far lower in less-used cemeteries, such as those in the outer suburbs or in a country town.
The payment for a burial occurs at the time of the funeral. Generally, this means that the funeral director pays the trustees of the cemetery, or any authorised officer of the trustees, and the Secretary of the Victorian Government Department of Health for the grave being dug or the vault being made, and then claims reimbursement as part of their fee. All interments (whether in a public cemetery or otherwise) must be authorised. In the case of interments in a public cemetery, authorisation can be sought by applying to the cemetery trustees (ss 116–120).
With approval in writing from the Secretary of the Department of Health (Vic), a dead body may be buried in any private ground or land specified by the Secretary of the Department of Health (Vic) (ss 121–127).
A person who buries the body of a person elsewhere than in a public cemetery without approval from the Secretary of the Department of Health (Vic) is liable to a penalty of 600 penalty units (pu) or five years’ jail or both (s 114) (see ‘A note about penalty units’ at the start of this book).
No corpse can be buried other than in a public cemetery, or even in a public cemetery, until a permit to bury it has been signed by an authorised officer of the cemetery trustees or the Secretary of the Department of Health (Vic) (ss 114–116).
The officer will not sign such a permit until the relevant documents have been produced. Generally, this means a notice in the form prescribed in section 37(2) of the BDMR Act (see ‘The registration of a death’, above) signed by a legally qualified medical practitioner. If, owing to special circumstances, it is not possible for a notice to be signed by a medical practitioner, a statutory declaration to that effect by the undertaker or other person conducting the burial may be enough (C&C Act s 116(3)(e)).
A person who wishes to erect or place a monument or tombstone in any part of any cemetery must, before permission is given, submit a plan of it to the trustees of the cemetery (or an officer authorised on their behalf). They may withhold permission and prevent the erection or placing of any monument or tombstone that appears to them to be inappropriate, unsafe or dangerous (ss 98–100). The holder of a right of interment must keep the grave and monument in a safe condition (ss 104–112). If the cemetery trust considers a grave to be unsafe, it has the power to repair the grave and make it safe (s 106).
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A cremation is generally less expensive than a burial, and it avoids the process of memorialisation. However, because it is irreversible, more legal requirements must be met than for burials and penalties for contravention of them are harsher.
A cremation must be conducted in a public cemetery and cannot be conducted until permission to cremate the corpse has been signed by an officer of the trustees of the cemetery (C&C Act ss 129, 130). A cremation can be undertaken outside a cemetery but only with the consent of the Secretary of the Department of Health (Vic) (ss 131–141). Ashes can be deposited in a public cemetery; however, there is no requirement to place them in a cemetery (s 128). If they are deposited in a public cemetery, it may be in perpetuity or for a limited tenure not exceeding 25 years (s 128).
While the right for a body to be buried is usually granted in perpetuity, the right to the interment of ashes is for a period of only 25 years, subject to a right to extend for a further 25 years. Alternatively, for the payment of an additional sum, the ashes may be interred in perpetuity (C&C Act ss 74, 75).
Any person who cremates or assists to cremate a corpse elsewhere then in any public cemetery without consent or permission is guilty of a misdemeanour; the penalty is a fine of up to 600 pu or imprisonment for up to five years (s 130).
Permission by an officer of the trustees of a cemetery will not be given until the officer has received an application in the form prescribed by sections 131(2) and (3) of the C&C Act (Cemeteries and Crematoria Regulations 2015 (Vic) (‘C&C Regulations’) Form 3 sch 1). This application is usually filled in by the executor or nearest surviving relative. It covers such matters as the relationship of the applicant to the deceased, the circumstances of death, directions, if any, by the deceased regarding the disposal of the body and the objections, if any, of near relatives to the cremation of the deceased.
Form 3 must also be accompanied by a form as set out in Form 4 schedule 1 of the C&C Regulations – signed by a doctor who did not sign the Notification of Death form under section 37(2) of the BDMR Act – that it is appropriate that the body be cremated.
The C&C Regulations set out the physical requirements for graves and coffins and the disposal of human remains.
The person who has the charge or conduct of a cremation must notify the government statist by way of a signed certificate stating the name of the deceased, the date and place of cremation, and where practicable the names of the persons related to the deceased present at the cremation and the name of the minister officiating at any religious ceremony upon it (C&C Act pt 9 div 3).
During cremation, coffins and caskets are completely cremated. They are never reused. Occasionally, metal handles and trims are removed; they are, however, smelted down separately and sold as scrap metal. The current trend is away from metal fittings. Where plastic ones are fitted to coffins and caskets, they are cremated without being removed.
After the cremation, on the giving of 48 hours’ notice, a small container marked with the deceased’s name and containing the ashes can either be collected from the crematorium (a fee is payable), collected from the funeral director, or disposed of according to the family’s wishes in the cemetery grounds for an additional cost.
There is no statutory requirement for the disposing of cremated remains, but if one wishes to inter ashes within the grounds of an appropriate institution it should be noted that some local churches have provision for the interment of parishioners’ ashes in a memorial garden. This may be substantially less costly than interment in the grounds of a cemetery. Permission for the scattering of ashes is not generally required. However, if the ashes are to be scattered on private property or in some public places, the consent of the owners of the property should be obtained as a fee may be payable for the scattering of the ashes if it is allowed.
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Persons with lawful custody of a body may permit it to undergo anatomical examination unless to their knowledge the deceased, during their lifetime, either in writing or verbally in the presence of two or more witnesses during the final illness, expressed the wish that their body should not undergo such examination, or unless the surviving spouse or senior next of kin requires the body to be interred or cremated without such examination (Human Tissue Act 1982 (Vic) (‘HT Act’) s 28).
The body of any person who dies in a public hospital or other public institution may, in some circumstances, be used for anatomical research, unless to the knowledge of the licensee of the institution the deceased had expressed a desire either in writing (at any time during their lifetime) or verbally in the presence of two or more witnesses during the final illness that their body should not undergo such examination, or unless the surviving spouse or senior next of kin of the deceased requires the body to be interred or cremated without examination (HT Act s 32).
A printed copy of this section of the HT Act must be posted in the entrance hall or other conspicuous place of every penal establishment or public hospital (except psychiatric hospitals).
A deceased person’s surviving spouse or senior next of kin can prevent such an examination if they require the body to be interred or cremated without such examination.
The HT Act (ss 26, 26A) provides that an adult may authorise the use of their body for transplant purposes. Appropriate notification should be carried at all times if this is desired.
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In Victoria a coffin is necessary for both burials and cremations. It must be a hygienic, closed receptacle soundly constructed of substantial wooden or other approved materials in such a way as to prevent the escape of offensive liquids or exhalations (C&C Regulations reg 13; pts 4, 5, 6).
Coffin makers (funeral directors’ suppliers) often refuse to sell direct to the public and, for obvious reasons, funeral directors are unwilling to do so. By law, so long as the coffin fulfils the above requirements, it can be constructed by a private individual.
The price of a purchased coffin or casket will greatly affect the cost of a funeral. Coffins that taper to the heel are generally less expensive than the rectangular caskets.
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If one wishes to bring a body into Victoria from interstate, the law of the place where the death occurred must be complied with when taking the body from that place. So long as all the legal requirements have been complied with, a body may be transported interstate from Victoria. This can be done by a private individual. No special cars or coffins are required, but a standard of decorum should be maintained.
Burial, cremation and donation of remains
Chapter: 9.5: Funerals
Contributor: Justin Rizzi, Barrister
Current as of: 1 September 2024
Law Handbook Page: 827
Next Section: After burial or cremation
