Contents

Chapter 1
What our review is about

The policy questions

1.29We now turn to the key policy questions our terms of reference require us to address. As discussed, these questions are not confined to the area of law that governs cemeteries and crematoria, but also extend to the legal and regulatory framework within which funeral services are provided and within which burial disputes are resolved.

1.30Below we set out the questions we have been asked to address in each of the different areas of the review. We identify the various public and private interests that need to be taken into account when assessing how well the current laws are working and whether there is a case for reform.

The provision of places for burial

1.31In Part 2 of the Issues Paper we focus on the Burial and Cremation Act 1964 (the Act) and the questions in our terms of reference that relate to the provision and management of places for burial and cremation. Some are “first principles” questions about the appropriateness or otherwise of the current constraints on the choices available to the public. Other questions are more narrowly focused on the machinery of the Act and whether it remains fit for purpose.

1.32The Act’s framework has not fundamentally changed since New Zealand’s foundational burial law was enacted in the late 19th century. The Cemeteries Act 1882 provided the blueprint for the provision and management of cemeteries for the next 125 years and was heavily influenced by public health concerns and the need to ensure that burials took place in an orderly and controlled manner. The Cemeteries Act’s original purpose was to ensure that every community in New Zealand had adequate access to places for the burial of their dead. It achieved this by imposing a legal obligation on local authorities to provide public cemeteries.

1.33Public health and administrative efficiency remain the key policy drivers underpinning the current statute. The Act’s main objectives are to ensure that all burials in New Zealand take place within a public cemetery and that all land used for burial, no matter how it was originally obtained or set aside, is subject to similar controls and management regimes. (Burials on Māori land are exempt from the Act’s provisions.) The Act makes some provision for religious diversity within the confines of a public cemetery and in some circumstances also allows denominational groups to establish burial grounds on private land. Apart from denominational groups, only local authorities are legally permitted to establish and manage public cemeteries under the current Act. Local authorities have broad discretionary powers, allowing them to determine how cemeteries operate and the extent to which personal and cultural expression is permitted in matters such as how a person is buried and memorialised.

1.34Our terms of reference ask whether this comparatively restrictive approach to burial is still justified. Specifically, we are asked to assess whether the regulatory framework within which local authorities are operating public cemeteries is sufficiently responsive to the needs of their communities, including the different cultural and religious groups within them. We are also asked to consider the needs of those whose personal values or convictions may not be accommodated within conventional cemeteries – for example, those who wish to be buried in an “eco” or “natural” burial ground. In assessing the current constraints we are mindful of the importance of the human rights framework discussed earlier, and particularly the importance of religious freedom and the freedom to practice one’s customs and beliefs.

1.35In chapter 5 we discuss whether these principles are given adequate weight under the current burials framework, or whether there is a case for adopting a more rights-based and less restrictive approach to where and how New Zealanders are buried. We also consider the risks and benefits of any liberalisation of our burial law and the implications for other important public and private interests involved. These include our interest in ensuring minimal risk to public health or potential for offence, and ensuring that land used for human burial is adequately protected.

1.36In chapter 6 we turn to this second important limb of our assessment of the current law – the way land used for human burial is managed under the Act. In particular we focus on the difficulties arising from the lack of any central database of land used for human burials in New Zealand, and the fact that at present no legal requirement exists for land used for burial to be formally designated.

1.37As noted in the terms of reference, in addition to the Act a number of other key statutes have an impact on how cemeteries are managed and protected. For example a great deal of land set aside for public cemeteries has the legal status of a reserve and is thus subject to the management requirements of the Reserves Act 1977. Also, many cemeteries and burial grounds in New Zealand contain graves dating back to the 19th century, which means they are automatically classified as an archaeological site as defined in section 2 of the Historic Places Act 1993.41 Such sites may not be “destroyed, damaged or modified” without special authority.42

1.38One of the questions we ask in this Issues Paper is how well the framework for establishing, managing and preserving cemeteries set out in the Act meshes with these other statutes, and in particular whether the Resource Management Act and its associated tools would provide a better framework.

CremationTop

1.39From as early as 1874 the law has explicitly recognised New Zealanders’ right to be cremated. Today an estimated 70 per cent are cremated, although rates vary significantly from region to region and within different demographic and ethnic groups. As with any service associated with death and its aftermath, the principle that bodies should be treated with dignity and respect applies at every stage of the cremation process. This includes how bodies are handled and stored before cremation, the process of cremation itself and the collection and handling of ashes.

1.40But there is also an overriding imperative to ensure that the process of cremation is not used for illegitimate purposes including for example, the destruction of evidence of a crime or other wrong-doing such as neglect. Therefore, there is strong public interest in a robust regulatory environment capable of maintaining the integrity of the cremation sector and detecting abuses. The process of incineration also produces emissions into the atmosphere and has the potential to impact adversely on air quality and the amenity value of the area in which crematoria are cited.

1.41At present the risks associated with cremation are partially addressed by the legal authorisations required before crematoria may be established, and by the regulations setting out the authorisations required before a body may be cremated. These laws and regulations are spread across the Act, the Resource Management Act, the Cremation Regulations 1973, and crematorium rules and bylaws. Some, but not all, of the policy concerns discussed above are addressed by these laws and regulations. The key provisions in the Act focus on the approvals process required before a crematorium can be established, while the accompanying regulations concentrate on minimising the risks of wrong-doing in the actual cremation process via a relatively onerous certification process.

1.42The adequacy of the cremation certification processes and the checks and balances required under the current regulations were considered by the Law Commission in a separate Issues Paper published in May 2011. Our preliminary conclusion was that despite the complex and multi-layered approvals process required before cremation may take place, the lack of independent auditing significantly undermined the effectiveness of the regulations. Our final recommendations for reform in this area will be included in our final report due to be published in 2014.

1.43In this Issues Paper our main concern, which we address in chapter 8, is the absence of any provisions specifically focused on the integrity of the sector, including the lack of industry best practice codes and independent auditing. In chapter 9 we consider how comparable overseas jurisdictions approach these matters and put forward preliminary proposals for strengthening the legal and regulatory framework.

1.44We also consider whether we need to take into account community interests and sensitivities in establishing and operating crematoria.

The Funeral SectorTop

1.45Respect for the dignity of the deceased is also a key principle when considering the adequacy of the regulatory framework within which those providing funeral services operate. Currently, however, the law provides very little direction and few specific protections on what happens to the body after death. The Act simply requires that disposal of a body occurs within a “reasonable time.”43 Provided the death is properly certified and registered, there is no legal requirement for a funeral director or any other professional person to be engaged in the processes that occur before burial or cremation.

1.46Despite no legal requirement to do so, the vast majority of New Zealanders do in fact use the professional services of funeral directors. At present anyone in New Zealand is able to set themselves up as a funeral director or embalmer. There are voluntary industry bodies providing optional training and a complaints service in relation to its members. But there are no compulsory training requirements, as the sector is not subject to any external regulation other than the registration of mortuaries under the Health (Burial) Regulations 1946. Nor is there any consumer protection legislation directed specifically at the funeral sector

1.47The majority of funeral directors and embalmers are members of their own professional organisations, which set standards, oversee training and provide a mechanism for resolving complaints. However, they are under no legal obligation to join or to abide by the decisions of the complaints body.

1.48Our terms of reference ask us to consider whether this current system of self-regulation should be continued, or whether an alternative system of regulation should be instituted. A number of different principles and public interests must be borne in mind when assessing the case for stronger regulatory oversight of the funeral sector. The integrity of the sector and public assurance are vital to protect the fundamental interest in ensuring bodies are treated with dignity and respect. However, before recommending any change to the current light-handed approach we would need to demonstrate that there is a problem with the status quo and that it requires a legislative response.

1.49In the absence of any external regulator, the public depends on general consumer law, such as the Fair Trading Act 1986 and the Consumer Guarantees Act 1993 in its dealings with the funeral sector. However, for reasons we outline in chapter 11, this is not a typical consumer market, as decisions about how to manage the death of a loved one are made infrequently and often under considerable pressure. The services are usually required urgently and must be geographically close. Often the processes are not well understood and pricing is not transparent or readily comparable with other providers. Nor do most people feel capable of opting out and managing the processes themselves.

1.50In chapter 12 we discuss these problems and the preliminary evidence for providing the public with greater transparency and increased protections in their dealings with the sector. We put forward for public consultation and debate a number of possible options for reform.

Decision making and dispute resolution after deathTop

1.51Two of the most critical and sensitive questions posed in our terms of reference are the adequacy of the law with respect to the “care and custody of the body after death” and the law’s responsiveness to the “beliefs, customs and practices of Maori”. These are the questions we turn to in Part 4 of the Issues Paper where we focus on the role the law should play in facilitating decision-making and managing serious disagreement at the time of death.

1.52Earlier in this chapter we set out the principles that underpin our approach to this review. These principles obviously have particular import when considering the rights and obligations of the living towards the recently deceased. However, while these principles provide an important foundation for this discussion they do not provide neat solutions to what are very complex legal and policy questions.

1.53For example, while most people would accept that treating the deceased with respect and dignity extends to ensuring the “right thing” is done by them at the time of their death, deeply felt disagreements can arise as to what the “right thing” means and how such decisions should be reached. The source of such disagreements may be personal, cultural, religious or a mix of all three. Frequently they will highlight quite fundamentally different values individuals and cultures place on personal autonomy, family and community.

1.54At present the Act is silent on these issues. In cases where there is a serious dispute, it is left to the Courts to adjudicate on a case-by-case basis, drawing on the rules judges have developed as they have decided cases brought before them. Under New Zealand case law, in the event of a dispute or lack of consensus about these arrangements the executor appointed by the deceased, or the person legally entitled to fulfil that role, has the right of decision. That right of decision is subject to the supervision of the High Court.

1.55This position is consistent with English common law, which has long held that the executor of the deceased’s estate has the exclusive right to decide how and where the deceased’s body is disposed of. However, this is not necessarily consistent with Māori customary law, which allows for more collective decision making, or with other areas of New Zealand’s statute law, such as the Human Tissue Act 2008, which recognises the autonomy of the individual to determine whether to donate their body or body parts after death.

1.56While it is rare for such disputes to reach the courts for resolution, the case of Takamore v Clarke illustrates how divisive these issues can be, not just for the immediate family but also for the wider community.44 In Takamore, three levels of the New Zealand courts (the High Court, the Court of Appeal and the Supreme Court) sought to accommodate the principles of certainty and administrative efficiency, which underpin the common law executor rule, with tikanga Māori, where decisions about a person’s place of burial are determined collectively, taking into account relationships with ancestors and the land itself.45

1.57In Part 4 we unpack these complex issues and consider how best to reflect the different perspectives and values involved in the various types of dispute that can occur around the time of a person’s death and immediately afterwards. We examine the principles underpinning the common law position and analyse the strengths and weaknesses of an exclusively common law approach to resolving such disputes.

1.58We also examine secondary and related decisions to be made by family and friends of the deceased, including the custody of ashes, memorialisation, disinterment and additional interments. Cremation and the handling and dispersal or interment of human ashes can also give rise to difficult legal and policy issues, and our terms of reference ask whether nationally consistent regulations are required to regulate the dispersal of human ashes to “avoid cultural offence and nuisance”.

1.59As stated earlier, as a matter of principle it is vital that any reforms in this area reflect the cultural heritage of all New Zealanders and take proper account of tikanga Māori. As a matter of principle it is also important that New Zealand’s law is clear, accessible and enforceable. While any attempt to provide statutory guidance in this area will be challenging, it may also be in the public interest. We look forward to hearing the public’s views on these matters.

41Under this Act an “archaeological site” includes any place in New Zealand that “was associated with human activity that occurred before 1900”.
42Historic Places Act 1993, s 10(1). The Act provides for the protection of New Zealand’s cultural heritage and wāhi tapu (defined in s 2 as a place “sacred to Māori in the traditional, spiritual, religious, ritual, or mythological sense”) through the use of heritage orders and covenants controlling the use and development of such sites. These designations are enforced through the Resource Management Act 1991 and given effect through district plans adopted by local authorities throughout the country.
43Burial and Cremation Act, s 46E.
44Takamore v Clarke (SC), above n 31.
45See ch 2 at [2.21 – [2.26].