Contents

Chapter 1
What our review is about

Scope of the review

1.1In New Zealand the events that unfold after a death are usually straightforward: a doctor establishes the probable cause of death and issues a “medical certificate of cause of death”; the body of the deceased is prepared and may be embalmed, and a funeral or tangihanga is held to farewell the deceased. Finally, the deceased’s body is interred in a public cemetery or urupā (Māori burial ground), or, more typically today, cremated. These practices and rites usually take place within a week or 10 days of the death. In the case of cremation, the ashes may be placed in an urn or other receptacle and either retained by the family or formally interred in a cemetery. Alternatively, they may be buried or scattered in some place of significance to the deceased. It is also common for some form of memorial to be placed on the gravesite or where ashes are interred. This may not occur until the first anniversary of the death.

1.2How we approach each stage of this process, the decisions we make, and the options available to us, are influenced by a mix of law, custom, belief, and pragmatism. While these influences can lead to considerable diversity in how we respond to death, everyone’s decisions are constrained by the same legal parameters. These parameters determine where, when and how burials and cremations may take place; the legal responsibilities of those making decisions and arrangements on behalf of the deceased; and the responsibilities of those who establish and manage funeral homes, cemeteries and crematoria.

1.3This is the first time in our history that these laws have been the subject of a “first principles” review. Instead of simply assessing whether the law is workable, accessible, enforceable and consistent with other relevant statutes,29 we must also ask whether the underlying principles and policy objectives remain appropriate. Does the law meet New Zealanders’ needs and expectations when it comes to how we approach death, the services available to the bereaved, and the options available to us for the final disposition of human remains?

1.4This broad brief is a reflection of the wide range of legal and policy questions posed in our terms of reference. These were developed in conjunction with the Ministry of Health, which is responsible for administering the Burial and Cremation Act 1964 (the Act), and require us to undertake a process of targeted and public consultation to determine the principles, policies and objectives which should drive legislation regulating the handling and burial of the dead in contemporary New Zealand. Specifically, we are asked:

(i) To determine whether the public interest requires the retention of primary legislation or whether the control and regulation of burials and cremations could be devolved to local authorities.
(ii) To improve the efficiency and effectiveness of the legislation by eliminating the current overlap and duplication between the Act and related legislation and regulations.
(iii) To deal explicitly with a number of issues, including whether the Act in its current form is meeting public expectations and needs for the handling and burial or cremation of the dead with specific reference to:
(iv) To examine the interface between the Act, the Coroners Act 2006, the Health Act 1956, the Local Government Act 2002 and the Resource Management Act 1991 to identify redundant and or duplicate provisions.
(v) To identify any residual public health provisions in the Act and make recommendations as to the most appropriate legal vehicle for these provisions.
(vi) To consider whether the current system of self-regulation of funeral directors should be continued or whether an alternative system of regulation should be instituted.
(vii) To consider whether nationally consistent regulations are required to regulate the dispersal of human and animal ashes to avoid cultural offence and nuisance.
(viii) To examine the adequacy and efficiency of the current laws and regulations relating to death certification and notification, and in particular whether there should be a statutory provision for certifying life is extinct.
(ix) To prepare an issues paper, undertake targeted and public consultation on the issues and call for public submissions.
(x) To prepare a final report and draft Bill including recommendations for the most appropriate government department to administer the new Act.

1.5While many of these questions focus on the machinery of the 1964 Act and how it interfaces with our modern statutes, others raise fundamental policy questions about the choices available to us and the way decisions are made at the time of death, and the value our society places on the maintenance and long-term preservation of memorials and land used for human burial.

1.6 The public response to events such as the desecration of graves in Auckland’s historic Symonds Street Cemetery, the clearance of decorations from Waikumete Cemetery’s “stillborn sanctuary” and the sale of old burial grounds associated with closed churches in various parts of the country, suggests many New Zealanders continue to care deeply about these matters.30 The very public and long-running dispute sparked by the sudden death in 2008 of James Takamore also shows the depth of feeling that can arise when families cannot agree on a loved one’s final resting place.31

1.7Given the unusually broad range of issues we address in this review we have divided this Issues Paper into four parts. Part 1 comprises two “scene setting” chapters. In this first chapter we explain the principles we consider should underpin the law in this area and provide an overview of the different policy questions posed by our terms of reference. In chapter 2 we discuss the social and cultural context in which we are conducting this review and how it influences our approach.

1.8Part 2 of the Issues Paper focuses on the Burial and Cremation Act and the policy issues arising with respect to the provision of places for burial and cremation in the 21st century. In Part 3 we discuss the adequacy of the legal and regulatory framework within which the funeral sector operates in New Zealand. Finally, in Part 4 we discuss the rights and obligations that apply when making decisions about final arrangements and the role of the law and courts in resolving disagreements among the bereaved. Each of these Parts can be downloaded separately from our website at www.lawcom.govt.nz.

1.9In each Part we do three things: identify the relevant public and private interests; assess whether the existing legal and regulatory framework is adequately protecting these interests and if, in our assessment, there is a case for reform; and put forward options for reform for consideration by the public and stakeholders.

1.10A number of the policy questions we have been asked to address in this review fall outside the current ambit of the primary legislation. For example, the Act provides no direction as to who has a right to bury or cremate the dead, or how disputes over these matters are to be resolved. In our discussions of the law relating to custodial rights over the body, we look instead to New Zealand’s common law (the body of law derived from court decisions rather than from statute law) and to tikanga Māori (the body of Māori customary law, values and practices).

1.11Similarly, the Act does not provide any sort of regulatory framework or standards for individuals or businesses providing services to the bereaved, such as funeral directors and embalmers. Instead we currently rely on the general Consumer Guarantees Act 1993 and the Fair Trading Act 1986 for consumer protections and remedies in this area.

1.12An overarching question for this review is whether this patchwork of statutory and common law is the most effective way of addressing the wide spectrum of public and private interests identified in our terms of reference, or whether it may be preferable to draft a comprehensive statute encompassing all relevant law in an accessible and coherent form.

1.13However, before deciding on the desirability or shape of any reforms in this sensitive area of law, it is vital that as a society we first identify and discuss the policy objectives and the values and principles that should underpin this review.

1.14The purpose of this introductory chapter is to set out the key policy questions raised by our terms of reference and to outline the various public interests that need to be considered when assessing whether or not there is a case for reform. We begin by outlining the broad principles that in our view should inform policy and law in this area.

29These include the Coroners Act 2006, the Health Act 1956, the Reserves Act 1997, the Local Government Act 2002, the Historic Places Act 1993 and the Resource Management Act 1991.
30Amy Maas “Crude desecration of graves punished” (27 February 2013) Stuff <www.stuff.co.nz>. Michael Morrah “Auckland council apologises for destroying graves” (4 February 2013) 3 News <www.3news.co.nz>.
31See ch 15 for full discussion of Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 and related issues.