Public Health Regulation 2022
The Public Health Regulation 2022 commenced on 1 September 2022.
The Regulation makes provision for disease control measures and the the facilities and procedures for the handling of bodies of deceased persons, exhumations, cremations and other matters relating to the disposal of bodies.
Arranging a funeral
While there is no legal requirement for the person responsible for arranging a funeral to use the services of a funeral director, most people find it easier to have an experienced professional carry out at least the basic requirements. Funeral directors, at the request of the person responsible, will arrange for:
- collecting and lodging legal documents
- removing and caring for the body
- supplying the coffin (or casket)
- purchasing a burial plot, arranging for its opening and closing or making arrangements for cremation
- providing a hearse (usually including mileage up to a certain limit)
- crematorium or graveside service.
They may also arrange the use of the funeral director’s premises, a chapel or church for a service, mourners’ cars, flowers and newspaper advertisements. Some people may wish to do some of these things themselves. Charges will vary, depending on the amount of work done and the types of services selected. Many funeral directors are available 24 hours a day but in most cases there will be an extra charge for after-hours work.
Making arrangements with a funeral director
The funeral arrangements are usually discussed at the funeral director’s premises or at the family’s home. The family should talk to more than one funeral director and ask any questions without feeling pressured by them. They need to decide about the sort of funeral they want before contacting the funeral director. It is helpful for a close friend or relative who is less emotionally involved to go with the family when making the arrangements. It is important to remember that the person agreeing to the funeral arrangements is entering into a contract and is responsible for paying the account.
From 1 February 2009, funeral directors who offer a ‘basic funeral option’ must provide customers with:
- information about their ‘basic funeral’ option, its cost and what it covers, by giving a ‘basic funeral notice’
- an itemised quote before entering into any funeral arrangement
- an itemised statement of the goods and services provided and their costs before accepting final payment.
It is not compulsory for funeral directors to provide a basic funeral option. But those who do will ask the customer to sign a slip saying they have received the notice. The optional basic funeral notice template includes a slip for customers to sign.
What is a basic funeral?
A basic funeral is the lowest cost funeral service package the funeral director is able to provide. It consists of a single service, conducted at the funeral director’s premises or at the burial or cremation site. It would take place on a weekday between 8 am and 5 pm. A basic funeral includes only the following:
- arrangement and conduct of the funeral
- transportation of the body to the funeral director’s premises, and then to the burial or cremation site
- storage of the body at a mortuary or holding room
- preparation of the body for burial or cremation (does not include preparation for viewing or embalming)
- the least expensive coffin available
- compulsory medical certificates or permits
- burial or cremation of the body.
Complaints about funeral directors
Complaints in the first instance should be discussed with the funeral director. If a satisfactory agreement cannot be reached, then a referral to the Australian Funeral Directors Association (AFDA) should be made (if the director is a member). If the director is not a member of the AFDA then a referral to NSW Fair Trading should be made in writing. They will want to hear both sides of the complaint before the complaint is investigated. If the problem is not resolved, a hearing may be held before the NSW Civil and Administrative Tribunal (NCAT).
Cultural and religious customs and practices
People from particular cultural and religious backgrounds can choose a funeral director who is able to provide a funeral service according to their own cultural and religious traditions. Workers in the industry will accommodate a range of customs and practices.
In some communities or religious groups, religious beliefs and traditions require the deceased person to be wrapped in a shroud and placed in direct contact with the earth without the use of a coffin. The Public Health Regulation 2022 (the Regulation) allows the Secretary to approve, generally or in a particular case, the burial of a deceased person in a grave without using a coffin. Find out more in the fact sheet Burial of a deceased person in a grave without a coffin.
Some families may wish to take the deceased home. A person who is not a funeral director is allowed to keep the body of a deceased person for up to 5 days after the date of death (section 80 of the Regulation). Find out more in the fact sheet Approval to keep the body of a deceased person for longer than permitted.
Aboriginal and Torres Strait Islanders
There are no set practices following the death of an Aboriginal or Torres Strait Islander. Each family will have its own individual requirements and cultural practices. Families can be assisted by the hospital’s Aboriginal Liaison Officer or the Local Aboriginal Medical Service or Aboriginal community organisation.
A funeral does not have to be a religious ceremony. In fact, some people choose to have a non-religious service or none at all.
A non-religious service is often conducted by a friend or by a funeral celebrant. The format of the service can be decided by the family or friends and is usually a very personal one. It could include a combination of readings or music and singing, and reflections about the person’s life. Celebrants charge fees for conducting these services.
Crematoriums and funeral homes may hire out their chapels for non-religious ceremonies, even if the deceased will not be cremated or buried there. Non-religious funeral ceremonies may also be held in a private home, or simply by the graveside. Funeral directors can help families plan a non-religious funeral.
Doing it yourself
The funeral industry in NSW operates around funeral directors and the traditions they have established, but they do not have exclusive rights in this area. There is nothing to prevent a family handling some of the funeral and burial or cremation arrangements themselves, provided they comply with all the regulations. Staff at the coroner’s mortuary may assist with information about requirements that must be met. Many aspects of a funeral service, such as flowers and cars, can be organised by friends and family. Getting involved in this way can also help in the grieving process. It gives the family the chance to make a creative and personal contribution.
Legally there is no set time within which a funeral must occur after the death. Although there is no legal impediment for a person to arrange the whole funeral themselves, they may find it difficult to do so as it involves coordinating a variety of complex tasks in a fairly short space of time. Help may be needed from an experienced person such as a funeral director, for example with completing and submitting all the forms. If the family adhere to the health regulations they can care for the body at home, build a coffin, or buy one from a retailer. They can also hire a hearse and transport the body (as long as it is properly enclosed in a coffin). If they want to have a ceremony, they can choose the format and details, such as whether or not to have flowers. Some people manage to persevere sufficiently to arrange much of the funeral themselves, but the best compromise may be for the family to choose what they want to arrange themselves and leave the rest to the funeral director.
For both burial and cremation a Medical certificate cause of death and a Form of information of death are required by the Births Deaths and Marriages Registration Act 1995 (NSW) or the Coroners Act 2009 (NSW). Additional documents required for cremation are set out in the Public Health Regulation 2022. Forms to apply for a cremation permit are available on the NSW Health web page Final arrangements of the deceased.
Coffins and caskets
Caskets are rectangular, while coffins are wider at the shoulders and narrower at the feet. Generally, coffins are less expensive than caskets. Prices vary widely, starting from around $1000. Rental coffins, which have a removable interior, are an option for reducing expense.
There are certain minimum requirements for coffins and caskets in NSW, including that:
- they must be lined with plastic and able to be easily handled and sealed
- if they are to be used for cremation, they must not be made of metal or any toxic material
- if decorative handles are not made from a type of burnable plastic, they must be removed before the coffin or casket goes into the cremator.
Coffins and caskets can be made from wood veneer, timber or metal. There are also environmentally-friendly options available such as caskets made from cardboard or wicker.
Viewing the deceased
Bereavement counsellors agree that there is therapeutic value in viewing the deceased, allowing family and friends to gather together to express support for each other and paying respects to the deceased.
Preparing a body for viewing involves adhering to the health regulations previously mentioned. In some cultural groups, the family and friends prepare the body. Family can dress the body or ask to have it dressed in any way they feel appropriate and can also ask to include other things in the coffin. Funeral directors should be able to accommodate these requests.
The viewing may occur whenever the family chooses, either shortly after death, immediately before the funeral, or at the beginning or end of the ceremony. While it can be emotionally difficult, it is an important aspect of the grieving process.
Embalming involves replacing all the bodily fluids with formalin to preserve the body and reduce bacteria. This is a health requirement if the body is to be available for viewing for a longer than usual time after death, transported to or from Australia, or entombed in an above-ground vault or mausoleum.
Embalming gives some colour to the body and many people who want a viewing are prepared to pay the extra cost of embalming for cosmetic reasons.
Larger funeral firms usually have their own facilities for embalming. Some firms may include the cost of embalming in their general fee or charge an additional amount.
In cities, cremation is more popular than burial and may be less expensive than a burial. If a service is requested the family can choose where it is held, which could be in a church or at a funeral chapel or in a park or by the graveside or at the crematorium.
At the crematorium
At the crematorium, the coffin is brought into the chapel before the mourners arrive. At the appropriate time during the service, the coffin is removed from view either by curtains being drawn or by lowering or rotating it through an opening in the wall or ground.
Some people question what happens after the coffin is moved to behind the curtain from the chapel at the crematorium. In NSW, coffins and caskets go into individual cremators and there are identity safeguards (a metal nameplate and an additional medical certificate) to ensure that no mistakes are made. Family may watch the coffin pass into the cremator if they wish, but advance notice to the crematorium is required.
Collecting and disposing of the ashes
It generally takes one to two hours to cremate a body and coffin. Family can arrange to collect or dispose of ashes with the crematorium or through the funeral director. The crematorium will keep the ashes for several months until they are collected. Some crematoriums charge a packaging and preparation or storage fee. If family don’t want the ashes they need to advise the crematorium who will dispose of them at their own expense. Ashes can be personally collected, but only by the person who arranged the cremation. Alternatively, arrangements can be made to have them scattered or stored in a niche, urn or memorial.
See the NSW Health website for information on the requirements for disposing of or scattering cremation ashes.
Religious attitudes to cremation
Orthodox Jews, Muslims and some other religious groups do not allow cremation. Most Christian religions allow cremation, as do Sikhs, Hindus and Buddhists.
Burial at sea
There is no automatic right to be buried at sea. Usually some long-standing connection to the sea has to be demonstrated. However, the cost of hiring a boat makes burials at sea much more expensive than conventional burials. Under section 19 of the Environment Protection (Sea Dumping) Act 1981 (Cth), the Minister may grant or refuse to grant a permit.
Applications for burials at sea cost $1675 and are forwarded to the Australian Government Department of the Environment and Energy. The application form asks for details about the vessel to be used, where loading will take place, the location of the proposed burial site and reasons why burial at sea is requested. The death certificate must also be shown. If there are no complications, permits are usually given within a few days.
Complications and delays most commonly arise in relation to finding a suitable burial site. The burial site must be away from any area trawled by fishing boats and must be approved by the Department of the Environment and Energy. The department can provide details of sites off the coast of Sydney which it has designated as suitable for burials.
Bodies to be buried at sea must not be embalmed and should be covered with a heavy canvas shroud. The body also needs to be weighted so that it sinks rapidly. Burials at sea should be organised by a funeral director so that the body is prepared in accordance with the Ship Captain’s Medical Guide. The prepared body is usually transported on the charter vessel in an overseas type packing case.
At the point of disposal, the body is lifted out of the case and placed on the lid. A service may follow. After the service, the end of the lid is raised and the body slides into the sea.
After a burial at sea, a full report outlining all the details must be sent to the department. A more common and cheaper alternative to burial at sea is cremating the body and scattering the ashes into the ocean (see Cremation above).
Burial on private land
Strict regulations control burial on private property. Local councils can prohibit burials outside cemeteries. The NSW Health fact sheet Burials on private land sets out the conditions on which approvals may be granted for burials on private property. The land must be at least 5 hectares, and the location has to have been approved for that purpose by the local authority. The body must be placed in a coffin and buried at a minimum depth of 900 mm. It requires that the burial is not likely to cause contamination to drinking water or a domestic water supply. There are also other issues the local government authority may like to consider as listed in the Public Health Regulation 2022. In any case, burying a person on private land changes the zoning to that of a cemetery, so selling the land could be a problem. The owner of the land also has to provide access to the grave for mourners.
Bodies bequeathed for scientific research
If a person wants to bequeath their body to a university for research, they need to have made a formal agreement with that university. Medical schools have different requirements so prospective donors should contact the university they want to bequeath their body to and they will be provided with all the details and a consent form. Bodies will only be accepted if they are needed, so there is no guarantee that the deceased will be accepted by an institution at the time of death. Nevertheless, people who wish to bequeath their bodies need to let their relatives, nursing home or hospital know. The institution should be notified of the death as soon as possible so that staff can prepare to receive the body. Relatives usually hold a memorial service after the death.
If the body is accepted, the institution arranges a small funeral (which could be four to six years later) at its expense. Some universities hold thanksgiving services for all donors. Relatives can be advised if they so wish. For more information see Scientific research in the Health decisions chapter.
The stillbirth of a baby is a traumatic and unexpected outcome of pregnancy for the parents and their family. It is important for the parents to have an opportunity to grieve their loss and arranging a funeral may assist them at this sad time.
A stillborn baby is defined as one that exhibits no respiration, heartbeat or other sign of life after birth, and:
- is of at least 20 weeks gestation, or
- if the gestation period cannot be reliably established, weighs at least 400 grams.
See Births, Deaths and Marriages Registration Act 1995, section 4.
Funeral of a stillborn baby
The law requires that stillborn babies are either cremated or buried. The procedures are:
- the birth must be registered by the parents
- if the doctor requests a post-mortem, a consent form must be signed by the parent
- the doctor completes a perinatal medical certificate of cause of death
- the funeral director completes a perinatal form of information of death.
Naming the baby
If the parents wish, they can name their baby; otherwise, ‘Baby’ is accepted as a given name. The Registry of Births, Deaths and Marriages issues birth certificates for stillborn babies. Fees apply.
Blessings and baptisms
Parents may want their stillborn baby to be blessed or baptised by a minister of religion. They may also want to do this if the baby is seriously ill and prognosis is poor. Parents will be given a baptismal certificate. Parents may also want to create mementos of their baby by taking photos and hand and foot prints and keeping the blanket their baby was wrapped in.
Burial or cremation
Parents can choose either a burial or cremation. As different cemeteries provide different facilities parents will need to choose a funeral director who can met their needs.
A Medical certificate of cause of death (completed by the doctor) is required for burial or cremation of a stillborn baby and the following additional documents are required for cremation:
- Application for permission for cremation of stillborn child with statutory declaration
- Medical referee's permit for cremation of body of still-born child.
These forms can be found on the NSW Health Final arrangements of the deceased page.
Arranging the ceremony
Some cemeteries have special sections for stillborn babies. A small bronze plaque is usually provided. Parents can decide whether or not they will attend the funeral.
In situations where the parents or relatives cannot afford a funeral, the hospital where the baby died will arrange a destitute funeral with the government contractor (see Destitute funerals in the Funeral costs chapter). A stillborn baby payment is available through Centrelink to assist parents with funeral costs. Families may also be eligible to receive Parental Leave Pay and Dad and Partner Pay under the Paid Parental Leave Scheme.
Counselling and support
Social workers are available in major public hospitals to provide emotional support and practical help to parents and for referral to other sources of support. Red Nose Grief and Loss can connect individuals and families to support services. The organisation also provides information and gives telephone advice. Parents may also become involved with the Stillbirth Foundation that is dedicated to research and supporting parents of stillborn babies.
Sources of help
Families may request that foetal tissue be returned to them. This can occur on the condition there is no public health risk associated with returning the foetal tissue; see NSW Health Policy PD2022_035 Donation use and retention of tissue from living persons.
Although not legally required, some parents may want to arrange a burial or cremation for their miscarriage.
For a cremation or burial in a cemetery, parents must engage a funeral director. This will incur costs. Parents can also choose to conduct a burial on private land or in a garden without engaging a funeral director. However, parents must be advised to comply with regulations as set out in the NSW Health fact sheet Burials on private land which provides information on the conditions of burial on private land (see Burial on private land above). The family must sign a statement at the hospital prior to taking possession of the tissue that they have been advised of the conditions and will adhere to them.
The following documents are required:
- a letter from a doctor if the foetus is to be buried or cremated by a funeral director, plus cremation certificates
- if family members are collecting the tissue they need a tissue release form and a travel certificate (letter) stating that the person is travelling with human tissue. Both are completed by the hospital doctor.
Parents can apply for a Recognition of Early Pregnancy Loss certificate from Service NSW. It is not a legal document and no fees apply.
Suicide and attempted suicide are no longer crimes in NSW, so the survivor of a suicide pact will not be guilty of murder or manslaughter. However, there are two offences connected with suicide under section 31C of the Crimes Act 1900 (NSW). One offence is aiding or abetting a suicide or attempted suicide; a person found guilty may be liable to up to 10 years’ imprisonment. The other offence is inciting or counselling someone to commit suicide; the penalty is up to five years’ imprisonment.
It is legal to use ‘reasonable force’ to prevent another person from committing suicide; Crimes Act 1900, section 574B.
Police and coroner
Where suicide is suspected, the death becomes a coroner’s case, so it must be reported to the police. The body must be formally identified to the police, who then report the death to the coroner. The coroner may authorise a post-mortem examination to be carried out at the nearest forensic mortuary, and a report is sent to the district coroner.
When the coroner makes a finding about the cause of death or makes an order authorising disposal of human remains a copy must be provided to the NSW Registry of Births, Deaths and Marriages so that they can issue a death certificate to the executor or next of kin (Births, Deaths and Marriages Registration Act 1995, section 40).
The cause of death has no bearing on funeral arrangements.
Organ and tissue donation
Many religions support organ and tissue donation as an act of compassion and generosity. A person who wishes to donate their organs at death needs to register with the Australian Organ Donor register. However, as family can still refuse consent, people need to advise family of their decision.
Additionally, for organ donation to occur the donor needs to have died in hospital after being on life support. Donation of cornea of the eye is the exception. Only one to two per cent of people die in hospital in the specific circumstances where organ donation is possible. The person has to be diagnosed as being ‘brain dead’ by two independent doctors, where the brain has ceased to function. Or the person has suffered ‘circulatory death’ where there is irreversible loss of circulation after cardiac arrest.
A person while alive can choose to be a ‘living donor’ where they can donate a kidney or small section of their liver or discarded bone.
DonateLife NSW provides donor family support which includes counselling and support for bereaved families.
Transporting bodies overseas
Transporting bodies into or out of Australia is very expensive, because of the cost of both preparation and transportation. Funeral directors must be engaged in both countries to ensure that international health and transport regulations are adhered to.
When sending bodies overseas, the receiving country’s consular and health regulations must be followed. In general, embalming of a body is required for transportation internationally. A certified copy of the death certificate needs to be provided. Clearance must be obtained from the country’s quarantine authorities and health department. The recipient at the final destination must confirm that they have received the body.
A funeral director will be needed to coordinate the procedure, which also involves customs and consular staff or the Australian High Commission in the other country. Customs and airlines will want to be satisfied of the accuracy of the documentation. Costs involved will include freight.
Bringing human remains into Australia
Human remains can pose a potential risk to human health. The Biosecurity Act 2015 (Cth) and the Biosecurity (Managing Human Remains) Instrument 2016 regulate the requirements for bringing human remains into Australia. The Australian Government Department of Agriculture and Water Resources manages risks to human health on behalf of the Australian Government Department of Health at all Australian air and sea ports.
Bodies or body parts being brought into Australia for burial or cremation must be brought in a hermetically-sealed container and each person transporting the human remains must follow infection control procedures during the transportation, including appropriate use of personal protective equipment. The following documents are required:
- a full death certificate stating the cause of death (generally an autopsy is performed to ensure accuracy of the cause of death)
- a certificate from the health authorities of the other country confirming that the body is free of infectious disease.
Documentation should be in English or be accompanied by a certified translated copy. Where the required official documentation is not available, the permission of a Commonwealth Human Biosecurity Officer will be required in order to bring the remains into Australia. For more information about gaining permission, see the Department of Health and Aged Care web page Importing human remains and biosecurity.
Additional information will be required, including the name and address of the receiver, and details of the flight the human remains will arrive on.
Transporting cremation ashes is simpler than transporting a body as they are not classified in Australia as ‘human remains’, having been through the cremation process. There are no biosecurity restrictions on bringing cremation ashes into Australia, although a container that is not made out of wood is recommended (ceramic or plastic are preferred as they are not a biosecurity concern). Ashes can generally be carried in hand luggage or sent as unaccompanied personal effects, but you will need to check with the airline or transport company. You do not need to declare human ashes on arrival to Australia on an incoming passenger card. The originating country and postal authorities may have their own requirements that you will need to satisfy. You can find a list of embassies and consulates on the Department of Foreign Affairs and Trade website.
To send cremation ashes overseas you will need to check the requirements of the destination country. Transportation companies, postal authorities and airlines may have their own requirements. Usually, the ashes must be in a container accompanied by a cremation certificate (which confirms the contents) and a customs declaration. It may be possible to send ashes by airmail but it will depend on the destination country. Check this with Australia Post to see if there are
Exhumation of human remains
In certain conditions, for example, if family wish to move the remains to another cemetery or country, or if the cemetery is being closed, approval may be granted for exhumation of human remains. Application for permission can be made to the relevant Local Health District Public Health Unit.
There are strict health regulations in NSW to control the handling, disposal and transportation of bodies with prescribed infectious diseases, see Public Health Regulation 2022, Part 8, Division 2.
Health regulations restrict transportation of bodies with infectious diseases from overseas.
This can cause problems for people when a family member has died from an infectious disease outside Australia and cannot be returned for burial or cremation. In these circumstances, it is usually easier to arrange cremation overseas and to transport the ashes to Australia. See Transporting bodies overseas above.
- Births, Deaths and Marriages Registration Act 1995 (NSW)
- Coroners Act 2009 (NSW)
- Crimes Act 1900 (NSW)
- Environmental Protection (Sea Dumping) Act 1981 (Cth)
- Public Health Regulation 2022 (NSW)
- Donate Life - Australian Organ Donor Register
- NSW Health - Final arrangements of the deceased
- NSW Registry of Births, Deaths and Marriages - Deaths
- Australian Department of the Environment and Energy - Burial at sea
- Legal Aid NSW | LawAccess NSW - After someone dies has information about who to notify after someone dies, funerals, the will, dealing with the estate, after probate or administration, distributing the estate, and family provision claims, as well as flowcharts, forms and frequently asked questions.
- The Australian Death Notification Service is a collaboration of the Births, Deaths and Marriages registries across Australia. It aims to let people notify government and non-government agencies, organisations and institutions that someone has died, just the once.