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Can a grant of a burial licence in a council-managed cemetery be refused if the applicant doesn't meet the "local connection" criteria?

A community cemetery advisory committee has recommended that Council should refuse to grant a burial licence in a council-managed cemetery if the applicant doesn't meet the "local connection criteria. The cemetery in question is on Crown Land and mainly provides for the needs of a small community.

Would such restrictions on burial procurement be legal under NSW legislation or regulation?

 

Site Admin Cemeteries & Crematoria NSW mentions " Cemeteries should also be secure, free from discrimination or bias", although this is in the context of physical access for staff, visitors & mourners. - Site Admin - 3 weeks ago


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Based on my experience as cemeteries & crematorium manager at a major NSW council (1995-2013), and reading of the current Cemeteries & Crematoria Act 2013 (NSW), the following points may assist:

  • The cemetery or cemeteries operated by council ought to operate under a policy fit for purpose.
  • Some NSW councils apply differential pricing for burial rights in their cemeteries. The differential is determined by the applicants or deceased's  address or connection to the cemetery and the area it serves.
    • For example, local applicants pay the standard fee. External applicants, with no connection to the area or cemetery, would be charge a premium loading, which could be in the form of a percentage premium.
  • Restricting access to a single ratepayer or resident group would not be a significant jump from the previous point.
  • Consideration should be given to other council's policies, particularly those that address discrimination issues.
  • The cemetery to which access is to be restricted should operate under its own policy.
  • Input from council's policy officers should be obtained. 

 

 

Answered


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There are a number of Councils that, in theory, apply a non-resident premium to burial right fees to discourage “out of towners”.  Where it is difficult is actually determining

  1. the criteria for eligibility: what are the criteria?  Obviously there will be long term residents who die in nursing homes etc outside the LGA.  What of children who grew up in the area then lived in Sydney for the next 65 years?  How do you deal with tenants who lived in the LGA more a short time eg a year?  What about people whose residences were on the other side of the street that forms the LGA boundary?  Do regular holiday makers qualify?  Clarification will also need to be there to cover situations that may arise eg a local resident applying to inter a relative who has never been a resident.
  1. who enforces the criteria:  Some Councils leave it to the client funeral director (as they know who is a “local”).  From my perspective it is unreasonable to put the client funeral director in that position.  If a cemetery has rules it should ensure they are enforced, not rely on someone else doing so.
  2. that the policy is not discriminatory:  Arguably that’s ok provided the rationale is clear, transparent and consistently applied eg it’s like what State premiers are doing with border lockdowns 😊.  It is important that a non-resident fee criteria is not in breach of other Council policies re discrimination.

From an implementation perspective it would be prudent to:

Determine the criteria that are to be used and what proof or documentation will be required to support an application..  Include them within the Cemetery Operating Policy.  To ensure transparency include the Operating Policy on the web site and refer to it as part of the Cemetery Application Forms.  It would also make sense to take legal advice on whether a cemetery operator has the “power” to make such a rule.

Answered


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