VICTORIAN CEMETERY LEGISLATION: A Brief Overview

David W. Weatherill

Following on the passing of the " CEMETERIES and CREMATORIA ACT 2003" by the Victorian Government, [the first new Act for over 50 years] the Victorian Department of Human Services [DHS] Cemeteries and Crematoria Department had been responsible for formulating the Regulations for the administration of the Act to come into force on the 1st July, 2005. These Regulations have been approved and are in operation.

Probably the two areas of " interest " to researchers are the:

(a). Cemetery Trust Records (what has to be recorded), and

(b). Access to cemeteries and Cemetery Trust Rules.

The following is a brief history of the control of, and legislation regarding, cemeteries within Victoria . (The support of the Parliamentary Library, Parliament of Victoria and the PROV is greatly appreciated in this preparation.)

1. The first Acts to come into operation within Victoria were::

(a). An Act for the Establishment and Regulation by Trustees of a General Cemetery near the City of Melbourne - 1850 NSW 14, No: 19;

This Act noted that as the cemeteries/burial grounds within the City of Melbourne and the suburbs are of limited number and insufficient for the increasing population it allows for the Queen to grant certain land in the neighbourhood of the City of Melbourne for burying the dead of all denominations of religious faith and for the area to be called the Melbourne General Cemetery.

(b). An Act for the Establishment and Management of Cemeteries in the Colony of Victoria 17 Vic, No:12 (1854).

This act allows to general regulations and for the establishment of cemeteries within the Colony of Victoria to be made. It also includes the Melbourne General Cemetery as noted above in 1850 NSW 14, No: 19. It also deals with the roles, powers and duties of Trustees of cemeteries, who will be responsible for each cemetery to the Crown.

2. On the 20 th April, 1864 the following came into operation: An Act to Consolidate and Amend the Laws relating to Cemeteries. 27 Vic No: 201. the Act was called “The Cemeteries Statute 1864” .

It noted that under the provisions of the cemeteries Acts, Trustees of public cemeteries were appointed by the Governor-in-Council. The Trustees were responsible for the establishment and management of public cemeteries, the collection of all fees, expenditure of government funds including funds for fencing of cemeteries and the making of rules and regulations for the administration of cemeteries. The Trustees were made responsible for keeping of accounts and records and to forward an annual statement to the Chief Secretary for publishing in the Government Gazette. Trustees were also required to permit the free burials of destitute persons (paupers).

3. There was an amendment to the legislation regarding cemeteries in Part: 1 of An Act to amend the Laws relating to or effecting Public Health. 6 th September, 1967 : 31 Vic 310. pp. 101-103.

Amongst the sections of this part, the following were noted:

(a). In Clause: 3 it stated that “No cemetery or burial ground shall be established or opened in Victoria save with the approval of the Governor in Council.”

(b). In Clause: 8 it noted that “All burials within any cemetery under any law for the time being in force relating to public cemeteries shall be registered in a book to be provided and kept by the trustees for that purpose; and in such register-book shall be distinguished in what parts of the cemetery the several bodies are buried; and such register-book shall be indexed so as to facilitate searches for entries therein”

* From 1864 to August 1873 the Commissioner of Public Works and the Public Works Department were responsible for the administration of cemeteries including the appointment of Trustees and regulation of fees charged by Trustees.

* From 1873 to 1888 the Commissioner of Crown Lands and Survey and the Department of Crown Lands and Survey were responsible for cemeteries.

* In 1888 the Chief Secretary and his Department took over control of cemeteries.

The Public Works Department was still in charge of any allocation of fencing grants for cemeteries. This seems to be the only main grant made to cemeteries by the governments of the day.

* In 1890 under the provisions of the Public Health Act 1889 – 53 Vic No 1044, section: 14, the Minister of Health and the Department of Public Health became responsibility for cemeteries.

4. On the 10 th July, 1890 the “Cemeteries Act 1890” was approved. This was titled An Act to consolidate the Laws relating to Cemeteries. 54 Vic No. 107;. and came into operation on the 1 st August, 1890 . This was a major Act that replaced a number of the earlier Acts dealing with cemeteries.

This Act dealt with the role, function, appointment and duties of Trustees. It also noted that no rule or regulation made by Trustees in regards to the operation of cemeteries will come into force until the same had been submitted to the Governor in Council for approval and published in the Government Gazette . It also dealt with requirements for burials in graves and vaults and again noted that no cemeteries or burial grounds shall be established without the approval of the Governor in Council.

The act also noted that all burials be registered in a book provided by, and kept by, the Trustees for this specific purpose and that free burials of paupers must continue.

6. The following Act: Cemeteries Act 1944, Act No. 5025 came into operation and also a change in 1944 with the new Ministry of Health Act 1943 saw the Minister of Health and the new Department of Health taking over responsibility of cemeteries. The Minister of Health became the minister responsible for the administration of the Cemeteries Acts.

7. The following is an additional list of years that the Cemetery Act was changed: 1909 (No 2218); 1915 (No. 2626); 1928 (No. 3652); 1930 (No. 3982); 1931 (N0. 4006)

8. 1958: The next major act that controlled cemeteries was the Cemeteries Act 1958: No. 6217 and over the years various changes to the Act and regulations were approved to meet changed requirements. This Act was still in force when the new 2003 Cemeteries Act was proclaimed.

NOTE : The responsibilities for cemeteries in Victoria has remained with the Minister of Health and the departments responsible for Health since 1890 although this might change in the later part of 2007.

9. The Cemeteries and Crematoria Act 2003 is the current Act in operation. It was initiated in August, 2003. with the Cemeteries and Crematoria Regulations 2005 (No. 76/2005) now being in operation.

So you can see that cemeteries in Victoria have been under a number of government departments over the years since Victoria became a colony. The two big issues that confront researchers today are locating many old cemeteries and burial grounds plus in locating records for cemeteries. It must also be remembered that these Acts/Regulations dealt primarily with Public Cemeteries. There were many private cemeteries, lone graves and small isolated burial grounds in the colony and then the state of Victoria over the many decades.

VICTORIAN CEMETERY RECORDS: A Brief Overview

Files and records are held by the following government agencies on the many cemeteries that are known.

* Department of Human Services [DHS]: The Cemeteries and Crematoria Unit of the Dept holds files on public cemeteries including plans, correspondence, yearly reports by the cemetery trusts and information on burials. The files, nor the Unit, hold burial records. There are 561 public cemeteries administered by 526 cemetery trusts in Victoria. A small number of cemetery trusts administer two or more cemeteries. There are also approximately 50 private cemeteries in Victoria that the DHS holds files on due to requests for burials in them. As well there are over 30 cemeteries now closed to new burials, but internments are still being made in existing family plots where Rights of Burial (and space) are held by families. Victoria also has nine crematoria that the DHS oversee.

* Department of Sustainability of Environment [DSE]: The Historic Places Section also holds a large database of public cemeteries (ie those mainly on, or were on, Crown Land) providing information on details of the individual cemeteries including plans, location, correspondence, description and heritage listing. The DSE regional offices hold the Cemetery Reserve Files, containing the information noted above. There are approximately 795 public cemeteries and burial grounds identified in the DSE database. These consist of public cemeteries, both open and closed; early cemeteries/burial grounds on public land including those that remain reserved for cemetery purposes but not managed by the DHS.

* Public Records Office, Victoria [PROV]: The PROV holds records on some cemeteries and Funeral Parlours in Victoria. You can locate these records via their on-line catalogue or visit their Reading Rooms.

* Registry of Births, Deaths & Marriages- Victoria: The main resource as to where a burial took place in Victoria is the information on the burial found (in most cases) recorded on the Death Certificate. Still this does not necessarily mean that this is where the final resting place is as burials were reinterred and this final resting place is not noted.

* Heritage Victoria. The organisation has brief records on those cemeteries under a Heritage overlay in Victoria. Their records are online.

Many family history, historical societies and libraries hold records, either burial records and/or monumental inscriptions of cemeteries. You need to check with these groups regarding the records they hold. A number of cemetery trusts have also had published books on their cemeteries. Cemeteries: Research is slowly identifying that there are well over 1200 cemeteries/burial grounds/lone graves/private burial grounds in Victoria since it became a colony. Many of these have disappeared over time with "nature" or "man" taking over the areas. The number of lone grave/graves within Victoria is quite large. The exact number of burial grounds may never been known but still research and researchers are turning more new ones each year. There is currently a pilot heritage study, in two stages, looking at lone graves (including small cemeteries/burial grounds) in Gippsland. Stage 1 of the study has been completed and the report published. Stage 2 is near completion. The project was initiated by the Gippsland Historic Cemeteries Committee, which includes representatives from Heritage Victoria, Historic Places Section of the DSE, DHS, the former Department of Infrastructure, the State Library and community members with a specialist interest in grave sites. This is only a brief overview of cemeteries within Victoria; it is no way complete but hopefully will give some indication of the topic. My research over the last decade has really only tapped into a small percentage of these cemeteries. A great number of other researchers have researched Victoria cemeteries over the years and their results have been published as books, microfiche, CDs or online records on the "web".