Funeral and Burial Instructions: Consultation Paper
2. Lawful methods of disposal
Introduction
2.1 This chapter sets out the lawful methods of disposal of bodies available in Victoria.
2.2 The requirements for lawfully disposing of a body are largely set out in the Cemeteries and Crematoria Act 2003 (Vic) (the Act). While burying or cremating a body in a public cemetery are the two most common forms of disposal, the law makes provision for other methods of disposal as long as permission has been obtained from the relevant office holder/s.
Burial
2.3 Under the Act, a person must not bury a body in a place other than a public cemetery unless they have obtained the permission of the Secretary of the Department of Health and Human Services.[1] The Secretary may attach conditions to the approval, including in relation to the depth of the burial.[2]
2.4 Before burying a body in a public cemetery, a person must apply to the cemetery trust for approval to bury the body there.[3]
Cremation
2.5 If a person wishes to cremate a body, they must do so in a public cemetery, unless permission is obtained from the Secretary of the Department of Health and Human Services to cremate the body elsewhere.[4]
2.6 Before cremating a body in a public cemetery, a person must apply to the cemetery trust for permission to cremate the body there.[5]
The disposal of ashes
2.7 The Act states that there is no requirement to dispose of cremated human remains in a public cemetery.[6]
2.8 Local council and other public bodies have varying requirements concerning the disposal of ashes, with some having no formal or published policy. For example, scattering ashes in the Royal Botanic Gardens in Melbourne is strictly prohibited,[7] but Hobsons Bay City Council expressly permits the scattering of ashes on land owned or managed by council.[8] A person may thus need to obtain permission from a public body if they wish to scatter ashes on public land or, in the case of private land, from the owner.
2.9 As discussed in more detail in Chapter 3, at common law a person cannot own a dead body. However, a person can own ashes.
2.10 In Doodeward v Spence, the High Court held that the human body can constitute property ‘when a person has by the lawful exercise of work or skill so dealt with a human body … that it has acquired some attributes differentiating it from a mere corpse awaiting burial’.[9] Applying the ‘work and skill exception’ established in Doodeward v Spence, Justice Byrne in Leeburn v Derndorfer stated that:
the application of fire to the cremated body is to be seen as the application to it of work or skill which has transformed it from flesh and blood to ashes, from corruptible material to material which is less so.[10]
2.11 Justice Byrne then held that a person’s right to own ashes is subject to the qualification that ‘arises from the fact that the ashes are, after all, the remains of a human being and for that reason they should be treated with appropriate respect and reverence’.[11]
Other methods of disposing of bodies
2.12 The burial of bodies at sea is allowed if a permit has been obtained from the Federal Minister for the Environment.[12] To obtain a permit, it is usually necessary to show that the deceased had a special connection to the sea, as may be the case for navy personnel or fishermen.[13]
Conclusion
2.13 This chapter sets out the legislative requirements for disposing of a dead body in Victoria. In most cases there is a choice of two options: burial or cremation. However, those making the funeral and burial arrangements are often required to make decisions about other aspects of the funeral such as prayers, rituals, the location of the ceremony and other practices. As with the choice of burial or cremation, disagreements may arise among survivors about who should make these decisions, and the deceased may have left instructions which may lead to conflict. The next chapter considers the common law in relation to funeral and burial instructions.
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Cemeteries and Crematoria Act 2003 (Vic) s 114.
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Ibid s 124.
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Ibid ss 114, 115.
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Ibid ss 129, 136.
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Ibid ss 130, 131.
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Ibid s 128.
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Act and Regulations, Royal Botanic Gardens Victoria <http://www.rbg.vic.gov.au/about-us/act-and-regulations>. See also, Geeshe Jacobsen, ‘Hallowed Turf for Some, but Hard to Find Final Resting Place’, Sydney Morning Herald, (online) 28 February 2009
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Hobsons Bay City Council, Memorial Plaques and Cremated Remains in Public Places Policy (27 November 2012), 4.3.1
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Doodeward v Spence (1908) 6 CLR 406, 414 (Griffin CJ).
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Leeburn v Derndorfer (2004) 14 VR 100, 107.
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Ibid 107 [27].
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Environment Protection (Sea Dumping) Act 1981 (Cth) s 18.
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Burial at Sea, Department of the Environment <https://www.environment.gov.au/marine/marine-pollution/sea-dumping/burial-sea>.
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