The Law Handbook 2024

Chapter 9.5: Funerals 921 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 ‘Registration of 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 (s 116(3)(e) C&C Act). 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). Cremation 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. Acremationmust 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 (ss 129, 130 C&C Act). 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 (ss 74, 75 C&C Act). Any person who cremates or assists to cremate acorpse elsewhere then inanypublic cemeterywithout consent or permission is guilty of a misdemeanour; the penalty is a fine of up to 600 penalty units 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 subsections 131(2) and (3) of the C&C Act (form 3 sch 1 Cemeteries and Crematoria Regulations 2015 (Vic) (‘ C&C Regulations ’)). 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 subsection 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 (pt 9 div 3 C&C Act). 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.