Page content: Note | Overview | Access to the cemetery | Cemetery trust members | Referral to the department | Dispute settlement | Formal appeal procedures | Victorian Civil and Administrative Tribunal
The Cemeteries and Crematoria Regulation Unit does not deal with complaints relating to funeral directors. For issues concerning funeral directors please contact Consumer Affairs Victoria.
Cemetery trusts are responsible for the cemeteries they govern. If you have an issue with a particular cemetery, in the first instance you should contact the relevant cemetery trust responsible for that cemetery. Find a cemetery and the cemetery trust responsible for that cemetery.
When trusts receive complaints about their policies and decisions from stakeholders, it is the trust’s responsibility to investigate the complaint, and where necessary to review their policies or decisions which relate to the complaint.
Any concerns with the decisions of a cemetery trust should be discussed initially between the complainant and representatives of the trust and an attempt should be made to resolve the matter. Regardless of the outcome of these discussions the trust should provide the complainant with a written response to their concerns.
No trust may disregard a complaint and consider it to be trivial or unnecessary to review.
Occasionally when an issue cannot be resolved, a legal dispute may arise between a person using the cemetery, such as a member of the public, stone mason or funeral director and the cemetery trust. When this occurs, a cemetery trust cannot simply ban the person involved in the dispute from the cemetery.
If a cemetery trust believes it has sufficient grounds to ban a person from the cemetery it should seek independent legal advice before taking any action. Any restriction of a person’s access to the cemetery must be in writing. It must cite the reason for the ban, the duration of the ban and the legal power the trust is relying on to apply the ban. The trust should advise the Cemeteries and Crematoria Regulation Unit before introducing any ban.
Conflict between trust members can occur and may be a normal part of trust dynamics. However where conflict does occur the chairperson must ensure that trust members respect other members’ points of view and that all members conduct themselves in a fair and professional manner. Often this requires listening to the views of other trust members taking into consideration all view points before coming to a decision, and treating fellow trust members with courtesy and respect once decisions have been made.
A cemetery trust does not have the power to remove any trust member.
Where trust members have concerns about the function of the trust they should meet with the chairperson and discuss their concerns. These concerns should be clearly documented and, where possible, should be supported by evidence.
Alternatively the trust member may raise these issues with the trust more generally. To do this the trust member must request that their concern be included on the next trust meeting agenda for discussion. If the matter is urgent, two trust members may ask the chairperson to convene an urgent meeting to discuss the issue.
There are limited circumstances in which the department can review the coduct of cemetery trusts.
Fraud or serious mismanagement
The department can investigate significant matters relating to cemetery trust governance and financial affairs. These may include:
- fraud such as misappropriation of trust funds
- poor management practices
- poor record-keeping practices
- conflicts of interest
In the case of suspected fraud a person should report their concerns immediately to the chairperson of the relevant cemetery trust. The chairperson must act on the concern and decide whether to investigate it further internally or report the suspected fraud to the police and the department.
If a cemetery trust has made a decision which a person considers is not consistent with the trust’s powers under the Cemeteries and Crematoria Act 2003, the department can, if it agrees with that view, ask the cemetery trust to review the decision.
If a trust is not prepared to change its decision after the department has asked for a review, a person can consider further options to address the disputed decision. Options include:
- dispute settlement (discussed below);
- complaining to Consumer Affairs Australia; or
- formal appeal procedures to a tribunal or court (see further below)
It is recommended that where an issue cannot be resolved directly between the trust and the complainant, the trust attempt to seek resolution through mediation or another form of conflict resolution. This may prevent the issue from becoming a legal matter or being escalated through a formal appeals process.
The Dispute Settlement Centre of Victoria provides an impartial and fair approach to dispute management. In some cases the centre can arrange for meetings to take place in rural areas. Visit the Dispute Settlement Centre of Victoria for more details.
Currently the avenues of formal appeal against a decision made by a cemetery trust are through a review of the decision by the ombudsman for administrative review or by an appeal to the Supreme Court for judicial review.
In addition under section 179 of the Act there is a specific appeals process for a holder of a right of interment to appeal to the Victorian Civil and Administrative Tribunal for review of a decision of a cemetery trust to:
- refuse to grant an approval to establish a memorial or a place of interment in the cemetery
- grant an approval to establish or alter a memorial or a place of interment in the cemetery subject to terms and conditions.
For more general information regarding dispute management and dispute management framework visit the Dispute Settlement Centre of Victoria web site.