1. General Terms
The following terms have the particular meanings set out below when used in this document:
Act means the Cemeteries and Crematoria Act 2003 (Vic).
Agreement means the agreement formed by our acceptance of the application made by you for a Right of Interment which these Terms and Conditions are attached to and form part of.
Applicant means you as the person or persons making the application to SMCT for goods and services.
Exercised Right of Interment means a location over which there is a Right of Interment where Human Remains have been interred or a Memorial has been installed.
Holder of Right means the person(s) who owns the Right of Interment. The Holder of Right doesn’t have to be the Applicant and may be the recipient of a transfer of the Right of Interment to him or her.
Human Remains mean (as in the Act) bodily remains, cremated remains or body parts.
Memorial means a monument, tombstone, headstone, ledger, cenotaph, plaque or other memorial to one or more deceased persons.
Place of Interment means any place where Human Remains (actual remains or the cremated remains) are or are to be interred and includes graves, crypts, niche walls or any other structure or plot which serves as a receptacle for the deceased.
Policy or Policies means SMCT's Policies in relation to the provision of the goods and services, the use of the goods and services, access to the cemetery ground, and any other matters which SMCT provides for in its policies, including any SMCT rules and regulations. These documents may be updated from time to time and the updated policy or rule will apply from the date it is published on SMCT's website.
Right of Interment means the exclusive right to have Human Remains interred at a particular Place of Interment subject to the rights and obligations that the Holder of Right has under the Act and otherwise subject to the terms and conditions attached to the deed we issue for the Right of Interment.
SMCT or we or us means the Southern Metropolitan Cemeteries Trust.
You we also use the term “you” when we are referring to you as the Applicant or Holder of Right and other terms such as ‘your’ when referring to your rights or obligations. This includes where the application or the Right of Interment is made in the name of more than one person in which case, the term “you” or “your” refers to all persons who are named as Applicant or as the Holder of Right.
(a) This is an application for an agreement to be made between you and SMCT for the purchase of goods and services. We may accept or reject an application at our discretion. You will be notified within 14 calendar days if the application is accepted or rejected. Your application will form the agreement between you and SMCT as the Applicant for the provision of the applicable goods and/or services.
(b) It is your responsibility to identify and inspect the Place of Interment selected, prior to making the application to make sure that you are or the nominated Holder of Right (if it is not you) is satisfied with it.
(c) The Agreement includes these Terms and Conditions and any Policies provided by SMCT with the application.
(d) Purchase of the goods and services is governed by these Terms and Conditions and they will prevail over any inconsistent provisions which may be contained in any other document.
(e) If you are the Applicant but you have nominated another person or persons as Holder of Right or if the Right of Interment is transferred to another person or persons, these Terms and Conditions (to the extent that they are applicable to Rights of Interment) apply to that other person or those persons as the Holder of Right.
(f) The Holder of Right must also comply with the Policies of SMCT, which may be amended, varied or replaced at any time.
1.3 Order of succession to a Right of Interment
(a) If the Holder of Right dies, or cannot be found the Right of Interment (and all associated rights) will be passed to the next person entitled to be the Holder of Right in the following order:
(i) where there are two or more Holders of Right of Interment, the Right of Interment will pass to the surviving Holder(s) of Right;
(ii) where the Holder of the Right dies, the Right of Interment will pass in accordance with the will of that person or, if there is no will, in accordance with law. Any person claiming to be entitled to have the Right of Interment transferred to them must provide an executed statutory declaration in a form prescribed by SMCT, that they legally have the right to be the Holder of Right. This right will either be as executor or administrator or as the person entitled under the will of the deceased or under the rules of intestacy to inherit the Right of Interment.
(a) You must pay a deposit of 20% of the purchase price specified in the fees schedule attached to this application at the same time that you submit your application to SMCT. The balance of the purchase price must be paid:
(i) in full within 30 days from the date of signing of the Application by SMCT; or
(ii) if SMCT has agreed, in monthly instalments over the agreed period, in accordance with the payment schedule attached to the application.
(b) The purchase price must be paid in full before goods or services will be provided and specifically before:
(i) the exercise of a Right of Interment or a cremation is performed; or
(ii) a Memorial is installed.
(c) Once you have paid a deposit, the purchase price is fixed for the goods and services you have ordered (even if SMCT increases the price for the goods and services before you have paid in full).
(d) SMCT may terminate this agreement if it does not receive full payment in accordance with the payment terms above. If this occurs, SMCT will refund any payment already made to you, less the applicable administration fee.
(e) SMCT accepts cash, cheque, direct debit, VISA, MasterCard and BPAY payments. If the purchase is for a service that is to occur within seven business days, payment must be made by cash, bank cheque, VISA or MasterCard.
(a) The Applicant(s) or Holder of Right may cancel the application or the Right of Interment at any time prior to making final payment and will receive a refund (less administration fees) of amounts paid. Following final payment, a refund will only be made to the Holder of Right (or his or her successor – see clause 1.3). Refunds for the surrender of Exercised Rights of Interment (Human Remains have been interred) will only be made in accordance with the Act and an administration fee may apply.
(b) If a Memorial has been installed at the Place of Interment, no refund will made until the Memorial is removed by the Holder of Right, or, if requested, by SMCT (in which case SMCT may charge a fee for the removal).
(c) Once the Right of Interment or Exercised Right of Interment is surrendered and refund made, the Holder of Right has no further rights or responsibilities in relation to the Place of Interment.
2. Right of Interment - Conditions
2.1 Conditions of Grant
(a) Once SMCT has accepted your application for a Right of Interment and when you have paid the full purchase price, the Holder of Right is granted the exclusive right to use the allocated site as a Place of Interment, on the following conditions:
(i) you must not exercise the Right of Interment or take any other action which would materially alter the Place of Interment without prior written approval of SMCT;
(ii) you or your representative are responsible for the maintenance of any Memorials at the place of interment including any supplied and installed by SMCT (following that installation). This does not apply to mausoleum shutters which will be maintained by SMCT;
(iii) you may transfer the Right of Interment to another person but the transfer is subject to the Holder of Right providing SMCT with a written request to transfer to do so. The transfer will not be effective until you have paid all applicable transfer fees and SMCT has approved and recorded the transfer;
(iv) if you require priority allocation of a Place of Interment, selection of site and actual interments of remains into the Place of Interment, additional fees and charges may apply.
(b) SMCT may at its discretion refuse to carry out an interment if:
(i) any remains, historical or archaeological relic or object of any kind are discovered during the course of preparing a site for an interment.
(ii) for any other reason permitted by applicable legislation.
(c) If SMCT is unable to permit an interment for any of the above reasons, it will offer you (at your option) an alternative Place of Interment or a refund in full of all fees paid for the Right of Interment.
(d) In relation to the Place of Interment, all graves are dug to allow for one interment only unless prior arrangements have been made with SMCT. Where multiple interments are intended by the Holder of Right and in order that the initial grave can be dug to accommodate additional, subsequent interments, the number of intended interments must be notified to SMCT and arranged/approved prior to the first interment. An additional fee may be payable in these circumstances.
2.2 Authorisations to Exercise
(a) Applications to SMCT to exercise a Right of Interment (interment into, or memorialisation of, a Place of Interment) must be made to SMCT by or with the written authority of, the Holder of Right and SMCT's authorisation obtained prior to any exercise of a Right of Interment to inter human remains.
(b) Anyone applying to exercise a Right of Interment must provide proof he or she or they:
(i) is or are the Holder of Right (by providing the deed for the Right of Interment); or
(ii) acts with the authority of the Holder of Right. In this case, the application needs to include a copy of the letter of authority, or evidence of next of kin or other documentation as required by SMCT.
(c) Where a Right of Interment is held by two or more people as the Holder of Right and one of them wishes to take any action with respect to the Right of Interment, he or she warrants to SMCT that he or she has the other Holders of Right's permission to act in the manner proposed. If requested to do so by SMCT, he or she must provide evidence of the other Holders of Right permission has been granted for the proposed action.
(d) If evidence of permission is requested by SMCT, it must be provided prior to any action taking place with respect to the Right of Interment.
2.3 Land Use and Development
SMCT may, subject to the Act but otherwise at its absolute discretion and at any time, choose to alter the specifications, restrictions and infrastructure associated with any of its cemetery sites. This includes the establishment of new areas, structures and infrastructure as well as the refurbishment of existing areas.
2.4 Non-approved Items (Floral / Mementos / Offerings)
(a) To preserve the well-kept beauty of the cemetery grounds and to reduce the risk of injury, certain items are not permitted.
(b) For information on approved items / non-approved items refer to the applicable Floral and Memento Policy provided with this application. Non-approved items may be removed and disposed of without prior notification.
2.5 Burning of Candles
Burning of candles or any other material is not permitted unless specified otherwise in the applicable Floral and Memento Policy. However, on total fire ban days as declared by the Country Fire Authority of Victoria, the burning of candles or other materials is not permitted at all.
3.1 Memorial Specifications
(a) For detailed specifications and restrictions applicable to the placing of Memorials at the Place of Interment, refer to the relevant Memorial Specifications.
(b) SMCT reserves the right to make variations to the Memorial Specifications from time to time provided that any new Memorial Specifications will not apply to existing (already installed) Memorials.
3.2 Rights of SMCT
(a) remove anything placed on a Place of Interment which has been put there without SMCT's written permission;
(b) refuse permission to erect a Memorial on a Place of Interment if it would contravene SMCT's Policies or would, in its opinion, be deemed a safety concern;
(c) reject inappropriate designs (as determined at its discretion); or
(d) restrict the materials used, dimensions and style of Memorials, the requirements for which may be varied at any time at its absolute discretion.
3.3 Provision of Memorials
(a) Memorials may be purchased, supplied and affixed in position by SMCT or external suppliers. Any external supplier must be accredited by SMCT (to be accredited the supplier must undergo induction training) to be able to carry out works at a cemetery.
(b) SMCT cannot guarantee the condition of its Memorial products over time. It is not responsible for the quality of goods, or workmanship of Memorials purchased from external suppliers.
(c) To ensure the correct placement and appropriateness of externally supplied Memorials, SMCT's written approval must be obtained (including to Memorial designs) prior to any Memorials being installed or affixed. Nothing in this clause affects your rights under or the consumer guarantees contained in the Australian Competition and Consumer Act 2010 (Cth).
(d) Temporary memorials that comply with cemetery guidelines, as outlined in the Temporary Memorial brochure, are permitted in some areas for a maximum period of 12 months from the date of the first exercise of the Right of Interment. After this time it must be removed or replaced with a permanent memorial/monument.
Inscriptions on Memorials in languages other than English will require an English translation to be provided in the application, and to be certified by the Applicant(s) as a true and correct translation.
Fees in relation to an application for the installation of a Memorial or to request SMCT to provide products and/or services in relation to a Memorial may vary depending on the type of Memorial and/or extent of the works being undertaken. SMCT’s fees are as specified in the gazetted fees schedule.
4.1 General Tenure
(a) To the extent permitted by law, and subject to clause 4.2, the Right of Interment is held in perpetuity (forever).
(b) Rights of Interment are granted in perpetuity (forever). However, if after 25 years from the date of the grant of the Right of Interment, the Right of Interment has not been exercised, SMCT may reclaim the Place of Interment if it has complied with the Act and conducted all diligent enquiries to locate the Holder of Right and has been unable to do so. In such circumstances, the Holder of Right will lose that Right of Interment after the expiration of 25 years.
4.2 Interment of Cremated Human Remains
(a) In the past, certain SMCT cemeteries offered limited tenure for Rights of Interment for the interment of cremated Human Remains.
(b) An existing Holder of Right with limited tenure has the option to convert the Right of Interment into perpetuity at any time during the 25 year tenure period by applying to SMCT and paying the applicable fee. After 25 years has expired, where there has not been a conversion of the Right of Interment to a perpetual right, SMCT may reclaim the Place of Interment if it has complied with the Act, scatter the cremated Human Remains and dispose of any related Memorials.
5.1 SMCT Responsible for Maintenance
SMCT is responsible for the perpetual maintenance of its mausoleums and surrounding gardens.
5.2 Embalming Certificate
All Human Remains for interment into a crypt must be fully embalmed and an embalming certificate issued by a funeral director/embalmer will be required to be provided to SMCT prior to the interment taking place.
SMCT may offer a range of packages for goods and services. The goods and services offered in these packages are standard and cannot be altered. No refund or discount will be provided if the Holder of Right does not use one or more of the items included in a package. For full details of what is included in the package purchased, refer to the applicable invoice.
7. General Terms
(a) To the extent permitted at law, this Agreement contains all of the terms and conditions agreed between you and SMCT and all previous oral or written communications and representations made between you and SMCT in relation to the supply of these goods and services.
(b) If there is any inconsistency between the English and translations in other languages, the English version will apply.
(c) The Terms and Conditions of this Agreement can only be varied in writing signed by all parties.
(d) Rights created under this Agreement cannot be waived except in writing by the party granting the waiver.
(e) If any part of this Agreement is void, unenforceable or illegal it is severed and the remainder continues in full force and effect.
(f) This Agreement is governed by the law of Victoria.
8. Privacy – Collection Statement
8.1 Collection of Personal Information
(a) SMCT collects personal information to assist in the processing of this application and to notify Applicant(s) and Holder(s) of Right about matters concerning them or the applicable Place of Interment or the provision of goods and services contracted for. This collection of personal information is also required to assist SMCT in complying with its obligations under the Act.
(b) Under the Act, SMCT is obliged to keep records regarding interments, cremations and Rights of Interment. Members of the public are entitled to request and be provided with access to those records.
(c) If the Applicant or the Holder of Right chooses not to provide the personal information requested in this application, SMCT may not be able to process the application or provide the goods and services for which the information is required.
8.3 Privacy Statement
(a) Any personal information you provide in your application will be treated in accordance with the principles set out in the Privacy and Data Protection Act 2014.
(b) You are able to request access to the information that we hold about you, and to request its correction if necessary. The information you provide to us is required to help us process your application and notify you of matters concerning it. We also need the information to perform our functions, comply with our obligations and exercise our rights under the Cemeteries and Crematoria Act 2003.
(c) Except for information you are required under the legislation to submit with your application, you are not obliged to provide any personal information. However, should you choose not to provide this information, we may not be able to process your application form or provide the services to you for which the information is required. We may also want to use and disclose the information for the purpose of providing you with information about memorialisation goods and services.