Contents

Chapter 1
What our review is about

Our principles

1.15How we approach death as individuals and as a society must accommodate two fundamental interests: our need to mourn and our need to manage the immediate biological reality of physical decomposition. Australian succession law expert, Professor Prue Vines, sums up this dichotomy by saying that our responses to death are influenced by a mix of the “sacred and the profane”.32 Many of the rituals and practices that have traditionally governed how bodies are handled and disposed of in different cultures reflect these two drivers: they provide important vehicles for the expression of human grief and connection with the deceased, while at the same time ensuring that the timing, manner and place of burial does not “harm” the living spiritually or physically.

1.16Like all aspects of culture, our responses and practices around death are not static but evolve along with our values, beliefs and understanding of the human body, mortality and disease. As we discuss in chapter 2, New Zealand has undergone major social and cultural change since our burial laws were last reviewed in 1964. Since that time many aspects of Māori culture, including the tangihanga, have had a defining impact on our social and legal landscape. The increasingly diverse ethnic make-up of our population and changing family structures are also influencing our approach to bereavement and death.

1.17However, we would argue that, notwithstanding these changes, the law in this area must continue to be informed by some fundamental common principles and values, the most important of which are human dignity and respect for the deceased.

Human dignity

1.18Respect for the deceased is a fundamental human value common to most cultures. At common law, the right to a decent burial has long been recognised, based on the importance of respect due to human remains. In many cultures, including under tikanga Māori, the tūpāpaku (body of a recently deceased person) is considered to have a special status somewhere between death and life, and the living have specific duties to take care of it.

1.19In collective conceptions of human rights, the dignity and autonomy of the group can be negatively affected by any mishandling of the body of a recently deceased member of the group. This is true in Māori contexts where the mana of the whānau pani (bereaved family) would be damaged if the tūpāpaku were not cared for and appropriately honoured. The same concepts inform many other cultural and religious approaches to the deceased.33
1.20In New Zealand, respect for the deceased is a value explicitly recognised in our criminal law: anyone who “improperly or indecently interferes with or offers any indignity to any dead human body or human remains, whether buried or not” may be imprisoned for up to two years.34 Even long after burial, there is a presumption that human remains should be left undisturbed. In New Zealand a licence from the Ministry of Health is required before anyone may disinter a body,35 and closed cemeteries may not be sold or used for other purposes.36

1.21Moreover, it can be argued that respect for the dignity and autonomy of the living require us to have respect for the dead. This is because of the interest each of us has in knowing that our bodies will be treated with dignity and will be decently disposed of after death. There is also arguably a broader interest. Respect for human rights requires us to uphold individual rights, but it also requires us to adopt an overall attitude of honouring human dignity. Whether or not we believe that a dead body has a particular spiritual status, there is a common sentiment that an indignity to a human body fails to respect the dignity of the person whose life has recently ended.

1.22We therefore support a framework that recognises the significance of the deceased person’s remains, both to the bereaved, including the deceased’s whānau, iwi or hapū, and because of the inherent status of human remains as the last physical presence of a person whose life has recently ended.

Tikanga MāoriTop

1.23 In our view tikanga Māori (customary law) must influence the shape of any reform. The imperatives of tikanga as it relates to death, mourning and the tangihanga are significant and deeply held. There are also strong connections to other significant aspects of tikanga including connections to whenua (land),37 tapu (sacredness or separateness),38 whakapapa (ancestry) and whanaungatanga (the centrality of relationships to the Māori way of life). The Law Commission has previously noted “the importance of developing a legal system that reflects New Zealand’s cultural heritage and of which all New Zealanders, not just the dominant majority, feel a part.”39

Freedom of belief and practiceTop

1.24New Zealand law explicitly recognises the rights of all citizens to practice their faith. Section 15 of the New Zealand Bill of Rights Act 1990 (BORA) states:

Every person has the right to manifest that person's religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private.

1.25The right of individuals who belong to an “ethnic, religious, or linguistic minority in New Zealand” to “enjoy the culture” and “profess and practise” the religion of that minority is also expressly protected under BORA.40

1.26It is our view that these provisions encompass the rights of different religious and ethnic groups to carry out the various religious rituals and cultural practices observed at the time of death, an event universally imbued with religious and cultural significance. For these reasons the legal framework that governs decisions about how New Zealanders approach death should not unduly restrain citizens from carrying out their mourning practices, and any limitations contained in this framework must have a clearly articulated and defensible policy basis.

Administrative efficiency and accessible lawTop

1.27The Law Commission Act 1985 explicitly states that one of our objectives is to ensure that the content of our laws and the language in which they are expressed is as clear as possible. This is to make our law accessible and enforceable. When reviewing a statute that has been in place for as long as the Burial and Cremation Act, it is also vital to review whether the overarching framework and concepts are compatible with other relevant New Zealand statutes. We are also required to evaluate the respective roles and powers of central and local government and the most appropriate legal and non-legal tools to use to achieve the relevant policy goals.

1.28Together, these principles inform our approach to the policy problems and possible reforms we discuss in this Issues Paper. We are interested in the public’s views of these principles and the relative weight they should be given in the policy process.

32Prue Vines “The Sacred and the Profane: The Role of Property Concepts in Disputes about Post-mortem Examination” (2007) University of New South Wales Faculty of Law Research Series 13.
33See ch 2.
34Crimes Act 1961, s 150.
35Burial and Cremation Act 1964, s 51.
36Section 43(2).
37Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 47–49.
38At 36–39.
39Māori Custom and Values in New Zealand Law, above n 37, at 6–7. See also Law Commission Coroners (NZLC R62, 2000) at [212]; Law Commission Justice: The Experience of Māori Women (NZLC R53, 1999) at [424]; Law Commission Act 1985, s 5(2)(a).
40New Zealand Bill of Rights Act 1990, s 20.