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This was an application under s 6 of the Succession Act 1981 for orders that the dead body of an Aboriginal deceased be released to the applicant (his mother) to arrange his burial. It was less than straightforward, necessitating his Honour’s consideration of not only the jurisdiction under the legislation but also conflicting Aboriginal customs and traditions. The matter was particularly delicate in that the issue of the deceased’s place of burial had been the subject of ongoing acrimonious debate between the applicant and the deceased’s aunt.
7 December 2020 (delivered ex tempore)
Briefly, the parties vehemently disagreed about whether the deceased should be buried at Mareeba or at Croydon. The applicant’s preference was the former, as it was the deceased’s birthplace. The aunt contended that the appropriate place of burial was Croydon, as it was where the deceased had lived for most of his adult life. As his Honour aptly observed, “[t]he disagreement aroused high emotions and could not be resolved by mediation. The making of a decision ordinarily made promptly in respectful privacy, sadly falls to now be made in the public and adversarial arena of a courtroom over two months after the unexpected death of the deceased intestate at the tender age of 28 ”.
Whilst it does not specifically apply to decision making as to burial, s 6 of the Succession Act 1981 confers the Court with the power to grant letters of administration and to determine all matters relating to the administration of the estate of any deceased person. Generally, no property vests in the body of a deceased person and under the common law, burial arrangements are undertaken by the person entitled to administration. Relevantly, r 610 of the Uniform Civil Procedure Rules 1999 provides for a descending order of priority of persons to whom the Court may grant letters of administration on intestacy. In circumstances where the deceased had no spouse, children or grandchildren, it would follow that the prima facie result would be that his parents would be entitled to priority. However, at the time of the application letters of administration had not been sought or granted and regardless, r 610(3) also gives the Court a discretion to depart from the order of priority which is outlined in r 610.
Notwithstanding, his Honour’s view was that, on the evidence before him, the most likely scenario would be that a court would consider one or both of the deceased’s parents as entitled to letters of administration. Despite the common law being a starting point, it alone was insufficient to decide the issue, with his Honour also taking into account matters including practical considerations, the sensitivities of those claiming a right to bury and various religious, cultural or spiritual considerations. The weight of those led his Honour to order that the burial proceed in Mareeba, and accordingly the “relatively finely balanced ” application was granted.
Importantly, in disposing of the matter his Honour observed that:
(i) Prior to the enactment of the Human Rights Act 2019 it was accepted that Aboriginal custom, including culture and spiritual beliefs, are directly relevant considerations in such matters – see Johnson v George  1 Qd R 333. Accordingly, the provisions of that Act, including s 28 “Cultural rights—Aboriginal peoples and Torres Strait Islander peoples” and s 48 “Interpretation”, would not have resulted in a different outcome.
(ii) Both active parties in the matter cited Aboriginal custom as supporting their differing views as to the appropriate place of burial. Had the outcome of Aboriginal custom in the case been consistent his Honour would have readily honoured it. However, the reality was that “there [we]re a difficult mix of custom related considerations in play ”.
(iii) The applicant had been the victim of both an unseemly assault and vilification in the course of her campaign to have her son buried in Mareeba rather than Croydon. Whilst those matters were not determinative and were of lesser weight than other practical considerations, they were of relevance to his determination.
A de Jersey