The Public Health Regulation 2022 (the Regulation) allows the Secretary to grant an approval to exhume the remains of a deceased person’s body.

Last updated: 18 October 2022

Background

Exhumation of human remains may occur for several reasons. These include:

  • to satisfy family or cultural wishes, where the family of the deceased person may want the remains to be moved to another burial ground, to another part of the state, to another state in Australia, internationally, or to have the remains cremated
  • Coronial Orders requiring exhumation for forensic (criminal) investigation
  • for scientific investigations (for example, to collect samples to assist in identification of unknown burials)
  • to enable the use of closed cemeteries for redevelopment or for the construction of new infrastructure
  • to relocate the body to another cemetery plot or vault within the same cemetery grounds.

Rules for exhumations

Exhumations need to be approved by the Secretary or ordered by the Coroner in line with section 94 of the Regulation. The approval is valid for a period of three months from the date of approval, or for a period agreed by the Secretary.

Under section 96 of the Regulation the Secretary may:

  • grant an approval to exhume the remains of a body, subject to any conditions specified in the approval
  • refuse the application.

An exhumation can only take place if an Authorised Officer or a Ministry of Health staff member is present. The Authorised Officer or Ministry of Health staff member can order the exhumation to stop at any time and penalties may apply if this direction is not followed.

The remains of a body of a deceased person can be exhumed and cremated. An exemption from the cremation permit requirements can be obtained where the body of the deceased person has been buried for longer than 10 years (an application and a fee apply to the exemption from the cremation permit requirement). The minimum 10-year period is strictly enforced.

A funeral director may transfer a coffin from a vault in a cemetery to a mortuary for repair and return it to the cemetery within 24 hours without an Order from the Coroner or approval from the Secretary.

Application to exhume human remains

An application for approval to exhume the remains of a body of a deceased person maybe made to the Secretary by:

  • an executor of the estate of the deceased person
  • the nearest surviving relative of the deceased person
  • if there is no executor or relative available to make the application, a person who - in the opinion of the Secretary - is a proper person in all the circumstances to make the application.

An application must be made in the approved form and include:

  • a certified copy of the death certificate issued under the Births, Deaths and Marriages Registration Act 1995, and
  • a statutory declaration as to the relationship of the applicant to the deceased person and the deceased person’s wishes, if any, regarding the disposal of the deceased person’s body, as far as the wishes are known to the applicant, and
  • the application fee specified in Schedule 5 of the Regulation.

Approval considerations

Local health district public health units (PHU) receive exhumation applications and advise applicants in writing about decisions to approve or refuse exhumations.

The Secretary’s authority to approve exhumations and to decide whether a person is “a proper person” to make an application under the Regulation is delegated to the Chief Health Officer, Executive Director Health Protection, Public Health Officer (as appointed under section 121 of the Public Health Act 2010), and Public Health Unit Director. (Please refer to Public Health Delegations Manual delegation PH/308, PH309).

Special consideration should be given to the approval of an exhumation if the deceased person was infected with a prescribed infectious disease. For example, if the deceased person was infected with diphtheria or tuberculosis, exhumation should not be permitted in the first year of interment.

Although not prohibited, an exhumation of the remains of a deceased person’s body that was buried without a coffin will be approved only where the cemetery authority and funeral director have agreed to proceed with the exhumation, especially during the first three years of interment.

Conditions of approval

After assessment of the application, supporting documents, and the statutory declaration(s), the PHU considers appropriate approval conditions to apply to the exhumation.

Standard approval conditions can be applied to the two categories of exhumations as appropriate:

  • Conditions of Approval for Exhumation from a Grave
  • Conditions of Approval for Exhumation from an Above Ground Structure.

The PHU may on a case-by-case basis include additional conditions that are necessary to allow the exhumation to occur.

An approval must be in writing and signed by the Secretary or their delegate.

PHUs advise the applicant, the cemetery authority, and the funeral director of the approval and the approval instrument is retained on NSW Health Content Manager system as arecord that approval was granted by the Secretary or their delegate.

If an application is refused, applicants are notified in writing specifying the reasons for refusal. Applicants should consult the PHU in the first instance to discuss the requirements and restrictions that apply to an exhumation.

Other laws

Work Health and Safety Act 2011

Exhumations need to be carried out safely and cemetery operators must ensure all aspects of an exhumation meet the Work Health and Safety Act 2011. Further information is available in the Work Health and Safety Act 2011 and Code of Practice for Excavation.

Work, health and safety matters are enforced by WorkSafe NSW. More information on safe work practices is available on WorkSafe.

Heritage Act 1977

The Heritage Act 1977 and Guidelines for the Management of Human Skeletal Remains applies to relic burials. Any burial site over 50 years old is deemed to be a relic under the Heritage Act. If the site is listed on the State Heritage Register then approval is required from the Heritage Council of NSW.

An application must be made to the Heritage Office before any disturbance, removal or work commences on the site. Approval for an exhumation under the Regulation does not remove the necessity to obtain approval under the Heritage Act 1977. For further information visit the Heritage Council of NSW.

Coroner’s Act 2009

A coroner may order an exhumation for the purposes of forensic investigation or a criminal investigation. Such an order is outside the scope of the Regulation. The Police may request that an Authorised Officer from the Ministry of Health or the local PHU be present at the coronial exhumation.

Births, Deaths and Marriages Registration Act 1995

Section 41(2) of the Births, Deaths and Marriages Registration Act 1995 requires that if human remains (other than cremated remains) are removed from NSW, the funeral director or other person who arranges for the removal of the remains must, within 28 days, give the Registrar notice of the new location of interment. They may be able to assist.

Related documents

Application form to exhume a body

Further advice


Current as at: Tuesday 18 October 2022
Contact page owner: Environmental Health