Chapter 16
Developing a new statutory framework

A statutory “right of decision”?

16.27 Given the range of matters potentially relevant to a burial decision, and the need for flexibility, the question then is what should be the broad outline of any new statutory regime.

16.28The starting point for the design of a new regime is whether to incorporate a statutory “right of decision”. Arguments can be made both ways. It might be thought that it is simply not appropriate to recognise such a right in the statutory regime, and that the most effective way to ensure that the full range of interests are taken into account is simply not to treat such a right as one recognised by New Zealand law. Alternatively, it might be thought that a statutory right of decision is a necessary tool to bring legal certainty to parties in dispute.

Arguments against including a statutory right of decision

16.29A right of control or decision over a body may raise notions of property or ownership that might not sit comfortably with the general public. We particularly note Māori unease over notions of ownership.720 The degree of inconsistency in the law regarding the legal recognition of rights in the body demonstrates the complexity of the policy concerns and other interests involved.721 The common law no property rule is subject to multiple exceptions and qualifications; it prevents people from making binding directions for their body in respect of some matters but not others.722
16.30 A statutory framework that sets down a right of decision in relation to burial matters may have a degree of artificiality. In the normal course of events decisions are reached not on the basis of a legal right but by family decision-making, and what is seen to be most appropriate by whoever is present and prepared to be involved at the time. This was noted in the Supreme Court decision in Takamore v Clarke by Elias CJ who observed that families “commonly attend to disposal of their dead” and often without reference to any rights of the executor.723 A number of New Zealand statutes confer a role on family in relation to the deceased, perhaps indicating community values and expectations of the role of family in these circumstances.724 It is arguable that the legal framework should reflect, as far as possible, actual practice, and if common practice is for family to decide in the manner that best suits them, the best approach may not be to recognise a statutory right to decision.

16.31We also note that enacting a statutory right of decision, at least one that vests in an individual, may obscure the beliefs of those cultures including Māori, that treat the collective interest as equally important as the exercise of an individual’s right.

16.32If it is thought inappropriate to include in statute a legally enforceable right of decision in relation to burial matters, burial legislation could simply state that the duty and responsibility of burying the deceased falls on “the immediate family” of the deceased, employing a broad definition of immediate family as found in some existing legislation. Section 86 of the Health Act 1956 would remain as a backstop provision, as it is now, to ensure that where no family is available to do that, the duty falls on the local authority, thereby ensuring that the bodies of all deceased persons would be properly buried.

16.33Legislation could also provide that, where there is disagreement over the burial of a deceased person that is inhibiting that person’s right to a decent burial, the court must make an order for burial directions. Families would then be expected to reach the decision in the way they saw fit, with the court available to assist or to decide the matter where the family is in dispute. The case would come before the court with no person being treated as having a prior right of decision.

Possible benefits of a statutory right of decisionTop

16.34The primary benefit of a statutory right of decision may be that it delivers legal certainty and control in those instances where someone does wish to exercise it, even if those instances rarely arise. Conceptually, it might be acceptable for such a right to be set down in statute but only to be exercised as and when required. It would not be obligatory to exercise the right and it might not even be activated until the point at which there is disagreement or dispute.725
16.35It is possible that many disputes arise because survivors do not know their legal rights and responsibilities towards the body. Stating those clearly in an Act might be a useful backstop position for people in discussion and could divert them from litigation. In the view of Kimberley Naguit, for instance, including a right of decision (which in her view should be vested in the deceased) would help eliminate disputes among survivors.726 However, Griggs and Mackie note that in United States jurisdictions, where the courts have recognised such a right, court challenges of the right frequently arise.727
16.36Another possible benefit of a statutory right of decision is that it would enable third parties, such as the coroner or a funeral director, to release the body to the person who they know has a defined legal right to it. It might give them some useful assurance if the parties are in dispute.728

16.37It would be possible to design a new statutory framework based around the recognition of a statutory right of decision as to burial. That could be built into the Burial and Cremation Act or its replacement statute.

16.38 Examples of overseas jurisdictions that include a rights-based framework in their burial legislation include British Columbia, Saksatchewan, Alberta and a number of United States jurisdictions.729 The Queensland Law Reform Commission also recommended in 2011 that the Cremations Act 2003 (Qld) be expanded to include a rights-based framework for burial decisions and be renamed the “Burials and Cremations Act 2003 (Qld)”.730
16.39If a new rights-based framework were to be adopted in New Zealand, a large number of consequential policy decisions would be required. Some of these could be adopted, or adapted, from existing common law,731 but given this is a first-principles review of the law we think there should also be fresh scrutiny of these matters.

16.40In the following section we give an introductory overview of the range of matters that would need to be considered, chief among which is the question of who would be entitled to exercise the right and in what circumstances. Many of these matters, and additional ones, have been explored or covered in more depth in other jurisdictions, particularly by the Queensland Law Reform Commission in its 2011 report, A Review of the Law in Relation to the Final Disposal of a Dead Body. We make references to those jurisdictions in our discussion.

720Submissions to this effect were made to the Law Commission’s Coroners review: Law Commission Coroners (NZLC R62, 2000) at [217].
721See for example Alexandra George “Is ‘Property’ Necessary? On Owning the Human Body and Its Parts” (2004) 10 Res Publica 15. A growing number of jurisdictions appear to grant individuals a right of control in their bodies through statutory donation regimes and through posthumous reproduction case law: see Hernandez, above n 706, from 1022 and Belinda Bennett “Posthumous Reproduction and the Meaning of Autonomy” (1999) 23 MULR 286.
722The executor’s rights have had to be expressed as an exception to that rule, or as an ancillary right that exists for a limited time and purpose: see Takamore v Clarke (CA), above n 711, at [200].
723Takamore v Clarke (SC), above n 716, at [83] per Elias CJ.
724Including the Coroners Act 2006, the Human Tissue Act 2008, s 12 and the Maritime Transport Act, s 25. See Takamore v Clarke (SC), above n 716, at [39]–[47].
725This is the current position in relation to the executor rule: see ch 14 at [14.5].
726Kimberley E Naguit “Letting the Dead Bury the Dead: Missouri’s Right of Sepulcher Addresses the Modern Decedent’s Wishes” (2010) 75 Missouri Law Review 248 at 269, as cited in Conway “Burial Instructions and the Governance of Death” (2012) 12(1) OUCLJ 59 at 79.
727Lynden Griggs and Ken Mackie “Burial Rights: The Contemporary Australian Position” (2000) 7 JLM 404 at 408–409.
728See ch 15 at [15.12].
729See the Cremation, Interment and Funeral Services Act SBC 2004 c 35; Funeral and Cremation Services Act RRS 1999 c F-23.3; General Regulation to Funeral Services Act 1998; Minn Stat.
730Queensland Law Reform Commission A Review of the Law in Relation to the Final Disposal of a Dead Body (QLRC R69, 2011).
731For instance, the Supreme Court has made suggestions as to the extent of a decision-maker’s duty of consultation: Takamore v Clarke (SC), above n 716, at [156].