Funerals, Burial and Cremation in the ACT

Contributed by Emma Bragg, Tetlow Legal and current to March 2022. Based on the contribution of Charles Rowland.

Procedure before the Funeral

General Duty to Report Death

Section 77(1) of the Coroners Act 1997 imposes a duty to report death to the coroner or a police officer:

(1) A person commits an offence if the person--

(a) knows that a death has happened; and

(b) has reasonable grounds to believe that--

(i) a coroner would have jurisdiction to hold an inquest in relation to the death; and

(ii) the death has not been reported to a coroner or a police officer; and

(c) does not report the death to a coroner or a police officer as soon as practicable after becoming aware of it and having the reasonable grounds mentioned in paragraph (b).

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

The police in turn have a duty to inform the coroner as per s77.

Inquest by the Coroner

Section 13 Coroners Act 1997 provides that an inquest must be held if a person:

• dies violently, or unnaturally, in unknown circumstances;
• dies under suspicious circumstances;
• dies and the death appears to be completely or partly attributable to-
  • an operation of a medical, surgical, dental or like nature; or
  • an invasive medical or diagnostic procedure; other than an operation or procedure that is specified in the regulations to be an operation or procedure to which this paragraph does not apply;
• dies and a doctor has not given a certificate about the cause of death;
• dies not having been attended by a medical practitioner at any time within the period commencing six months before the death;
• dies after an accident where the cause of death appears to be directly attributable to the accident;
• dies, or is suspected to have died, in circumstances that, in the opinion of the Attorney-General, should be better ascertained; or
• dies in custody.

In most cases the coroner has a discretion to dispense with the holding of a full inquest if they think it unnecessary after making preliminary inquiries, but the coroner cannot make that decision if the death occurred in custody or as a result of an operation: ss 13, 14 Coroners Act 1997. A post mortem examination may be ordered: ss 20-33 Coroners Act 1997.

If an inquest is held, witnesses or relatives often wish to have legal representation at the hearing. The coroner may give leave to any witness or person who has sufficient interest to appear and cross-examine either in person or by a legal representative: s 42 Coroners Act 1997.

In the ACT the coroner sits alone: s 4(2) Coroners Act 1997. The object of the inquest is to determine the identity of the dead person, when and where death occurred, the manner and cause of death; and to determine if there is a prima facie case against any person for an indictable offence: ss 52, 53 Coroners Act 1997. An inquest is not a trial, however, and the coronial inquiry is not bound by the rules of evidence: s 47 Coroners Act.

Once the inquest is completed, members of the immediate family of a deceased for whom an inquest (other than an inquest into a death in custody) has been held may request a copy of the coroner's findings.

Arranging the Funeral

Who Organises the Funeral?

If there is a will which names an executor, then they are normally entitled to custody of the body and has ultimate control of its disposal. The next of kin are not obliged to arrange a funeral. If there is no executor or relative interested, then a friend may organise the funeral without necessarily becoming obliged to administer all the deceased’s affairs. In the absence of any interested person the hospital usually refers the death to the Office of the Public Trustee and Guardian for the ACT, which can arrange the funeral. Sometimes the police or hospitals refer deaths to the Welfare Branch, ACT Administration, which can also arrange the funeral.

Directions from the deceased as to the means of disposing of their body have no binding legal effect except in one instance. If the dead person directed before they died that their body not be cremated then any application for cremation must be refused: reg 8(1)(c) Cemeteries and Crematoria Regulation 2003.

Who Pays for the Funeral?

A. Generally

The funeral directors will regard the person who authorises the funeral and enters into the contract with the funeral director as the person who undertakes the legal and financial obligation.

One of the major difficulties is the ACT practice where many funeral directors require payment of the total cost before the funeral takes place. In these cases, a family member will usually agree to become personally liable and settle the account with the funeral director. This can cause distress for family members who may not have access to the considerable sum required in a short time. Of course, individual funeral directors make individual arrangements depending on the circumstances. If the executor is arranging the funeral, the funeral directors often prepare a tax invoice and give that together with a copy of the medical certificate to the Bank who will often agree to release to the executor the amount of money from the deceased's bank account to pay the account.

B. Pre-Paid Funerals

Pre-paid funeral arrangements with funeral directors are becoming more common. There is no industry standard contract in these circumstances. Many funeral directors are party to a plan honoured by funeral directors Australia-wide. If that is not the case, and the deceased has moved before death, that person may be able to have the funeral director transfer the arrangements to another funeral director near where they now live. If you have a pre-paid funeral plan, ensure you contact the funeral director when you move so that your plan can be honoured in the new location. A pre-paid plan certainly removes a financial burden on the family at a time of grief, and the family can also be sure that the funeral and burial arrangements are those the deceased wanted.

It is vital to make sure that your relatives know about your pre-paid funeral plan if you have one.

C. Deceased has Few Assets; Deaths referred to the Public Trustee and Guardian

When a death is referred to the Public Trustee and Guardian, it assesses whether the estate is sufficient to pay for a funeral. If it is, then the Public Trustee and Guardian organises a funeral and recovers the cost from the estate.

If a death is referred to the Public Trustee and Guardian and it is thought that the estate is insufficient, the matter is referred to the Office for Children, Youth and Family Support (for contact details see Contacts and Resources). The Welfare Branch makes the funeral arrangements with a local undertaker and pays the cost of the funeral. If any money is obtained from the estate the Public Trustee and Guardian reimburses the Welfare Branch. In most cases deaths of destitute persons are referred directly to the Welfare Branch by the police or the hospital welfare workers or by relatives who are unable to pay. Like other funerals, there will be a service usually at the crematorium or cemetery, and the grave will have a plaque placed on it, in consultation with any family members.

D. Funeral Benefits

Some possible sources of funeral benefits are:

• life insurance;
• health funds;
• Workers' Compensation;
• Veterans' Benefits (available to survivor of a veteran or to veterans in charge of a funeral);
• The Department of Families, Housing, Community Services and Indigenous Affairs (through Centrelink) now contributes an additional pension payment as a contribution to funeral benefits.
• social clubs;
• trade unions; and
• superannuation.

Possession of the Body and Moving the Body

Obtaining Possession of the Body

When a person dies in a hospital or nursing home, the family may contact the funeral directors of their choice. In turn, the funeral director contacts the hospital or nursing home administration, and collects from them the doctor's certificate regarding the cause of death, and an order to the mortuary attendant to release the body from the hospital mortuary into their care. When a person dies at home, the ambulance takes the body to the hospital, and the procedure outlined above is followed. The mortuaries of the public hospitals do not charge for storing a body.

Taking the Body outside of the ACT

The ACT Coroner has power to remove a deceased's body outside the ACT if requested to do so by an interstate coroner conducting an inquest into the deceased's death in that State: s 31 Coroners Act.

If the coroner is not involved, the funeral director or person responsible for organising the funeral has 28 days from the date of death to advise the Registrar in writing of the location and type of burial, the name and residential address of the deceased, a statement as to whether the death was reported to the coroner, the place and manner of disposal, as well as other matters required by the Regulations: s 37 Births, Deaths and Marriages Registration Act 1997. The law of the place to which the body is moved governs cremation and burial at that place, but the person organising it must still comply with these requirements.

The practice is for ACT funeral directors to complete a ‘removal from Territory’ form, notifying the Registrar that the body has been removed from the Territory, and who the responsible funeral directors now are. The Registrar will then look to the newly nominated funeral directors to complete the matters required by s 37 Births, Deaths and Marriages Registration Act 1997.

Bringing the Body into the ACT

The law of the place where the death occurred must be complied with when taking the body from that place. There is provision for using certificates under the law of the place where the death occurred instead of certificates under ACT law: Reg 6(1)(d) Cemeteries and Crematoria Regulation.

After the Funeral, Cremation or Burial

Notice of Burial or Cremation

After the final interment of the remains, the person in charge of the burial or cremation (normally the undertaker) will give to the Registrar of Births, Deaths and Marriages a notice in writing: s 37 Births, Deaths and Marriages Registration Act. That notice informs the Registrar of the name and last residential address of the deceased, whether the death was reported to a coroner and the place and manner of the disposal of the body. The Regulations set out the detailed requirements: reg 9, 10 Births, Deaths and Marriages Registration Regulation 1998.

What happens to the Ashes after Cremation?

The operator of the Crematorium may deliver the ashes to the person who arranged the cremation or to any other person with the consent in writing of the person who arranged the cremation: Reg 11 Cemeteries and Crematoria Regulation 2003.

The person who obtains the ashes can arrange for them to be interred in a cemetery, or can dispose of them however they wish. It is becoming more common for family members to choose to have some portion of the ashes interred at the Crematorium, and some interred or scattered at a private location.

Alternatively, the operator of the Crematorium may give notice to the person who arranged the cremation asking what is to be done with the ashes. The Crematorium will inter the ashes at the request of that person (for example in a special wall, or under a rose bush) or, if they do not receive a reply within one year, they can inter them at the Crematorium, or deliver them to an adult family member of the deceased: Reg 11 Cemeteries and Crematoria Regulation 2003.

Information for the Registrar of Births, Deaths and Marriages

The Registrar gets the necessary details (relating to the deceased's place of birth, age, marriages, children, parents, and so on) from a notice in writing which is lodged by the funeral director after the funeral: s 37 Births, Deaths and Marriages Registration Act.

Death Certificate

After the funeral the next of kin will in all probability need to procure a ‘Death Certificate’ to prove the death. The Death Certificate is necessary in order to administer the estate of the deceased, and for other reasons, such as obtaining funeral benefits. The ‘Death Certificate’ referred to here is the one issued by the Registrar of Births, Deaths and Marriages, not the Medical Certificate given to the Registrar by the medical practitioner. The Death Certificate is often ordered by the funeral director.