Contents

Chapter 3
A brief history of our burial and cremation law

Information, registration and record-keeping

3.59An important aspect of cemetery and crematoria management is the management of information and record-keeping. Some specific provisions about the keeping of official registers are applicable, which we outline below. These requirements specify the information that is to be kept and the access that must be provided to it. The issues relating to information capture through the death certification process have been separately canvassed in an earlier Issues Paper.117
3.60The deaths register under the Births, Deaths, Marriages, and Relationships Registration Act 1995 (BDMRR Act) is a central public register managed by the Registrar of Births, Deaths and Marriages within the Department of Internal Affairs. One of the prescribed details to be included on a person’s death certificate is the date and place their body was buried, cremated, or otherwise disposed of.118 Public registers relating to burial information are also kept by individual cemeteries.119

3.61Aside from their statutory obligations, as a matter of practice, cemeteries need to have information systems in place to record plot sales and the reservation of particular plots before burial. Cemeteries and crematoria must also handle information requests from funeral services providers and members of the public. These information requests may relate to a particular burial or cremation, or, where the cemetery or crematorium is a public entity such as a local authority, may relate to operation and compliance.

Deaths register

3.62The preservation and availability of information about a person’s death is governed by the BDMRR Act.120 Part 6 of this Act requires every death in New Zealand to be registered within three working days after the burial or cremation.121 After disinterment, the Registrar is to be notified within five working days of where and how the body was subsequently disposed.122
3.63Public access to information on the registers is governed by Part 9 of the BDMRR Act. A distinction is made between historical records and non-historical records. Historical records relate to deaths that occurred 50 years ago or more, or where the deceased’s date of birth was 80 years ago or more.123 The Act allows the Registrar-General to make certain historical information available to the public on the internet.124 Non-historical information relating to a person’s death must be requested, with the person making the request providing evidence of their identity.125

Burials registersTop

3.64Information relating to a person’s burial is also governed by the Burial and Cremation Act. Section 50 regulates the record keeping of burials within cemeteries by local authorities:126
(1) All burials within any cemetery shall be registered in a register to be provided and kept for that purpose by the local authority and in such register shall be distinguished in what parts of the cemetery the several bodies are buried, and a proper description of every grave shall be given, so that the situation thereof can be ascertained, and such register shall be indexed, so as to facilitate searches for entries therein.
​(2) Every register shall be open for inspection at all reasonable times, at some convenient place, upon payment of a fee of 5 shillings for every such inspection.
3.65This obligation extends to cemeteries operated by trusts, but it appears that records are not consistently passed on by trustees (or followed up by local authorities). All of the trustees that managed cemeteries that responded to our Cemetery Trustees Survey confirmed that they retained yearly records of burial.127 Most had a complete set of records in hard copy, although some noted that historical records have been lost over time.

3.66The register does not relate to plot sales information, only to records of burials that have taken place. Most local authorities provide online access to burial records, but as noted above, there is no central register. Section 50 does not expressly mention disinterment but it could be regarded as implicit that the register should be altered to reflect any disinterment.

Crematorium registersTop

3.67The Cremation Regulations require every cremation authority128 to appoint a registrar to keep a register of cremations.129 The crematorium registers established under regulation 9 are not public registers; the intent of the registers is to provide particular information to health officials upon inspection:
9 Records and register
(1) The cremation authority shall appoint a registrar who shall keep in form H of Schedule 1130 a register of all cremations taking place at the crematorium. He shall make the entries relating to each cremation immediately the cremation has taken place, except the final entries, which he shall make as soon as the ashes have been delivered to any person or otherwise finally disposed of.
(2) The Medical Referee shall, after determining an application for cremation, deliver to the registrar all documents held by him in connection with the application (whether or not he permits the cremation) except the copy of the form of permission to cremate sent to an attendant pursuant to subclause (8) of regulation 7.
(3) All applications, certificates, statutory declarations, and other documents relating to any cremation, whether that cremation is carried out pursuant to these regulations or pursuant to another enactment, shall be marked with a number corresponding to the number in the register, and shall be filed in order and shall be carefully preserved by the cremation authority. All such registers and documents shall be open to inspection at any reasonable hour by any constable, Medical Officer of Health, health protection officer, or any person appointed for that purpose by the Minister.
(4) When any crematorium is closed the crematorium authority shall send all registers and documents relating to the cremations which have taken place therein to the Minister, or otherwise dispose of them as he may direct.
(5) In the application of the regulation to cremations taking place elsewhere than in an approved crematorium, the Medical Officer of Health shall carry out the duties thereby imposed on registrars as nearly as may be.

Access to informationTop

3.68From our preliminary consultation, we heard that local authority cemetery managers receive frequent requests for gravesite and burial information from genealogists. Some also often receive requests for information about reserved burial plots from the funeral services sector, and must grapple with assessing the privacy implications of releasing plot information about people who are still living.

3.69Aside from the official registers described above, public access to information held by cemeteries is governed by legislation including the Official Information Act 1982, the Local Government Official Information and Meetings Act 1987131 and the Privacy Act 1993.132 The Privacy Act applies to both the public and private sector, while the official information legislation applies to the public sector only. However, the Official Information Act extends to any information held by an independent contractor133 and the Local Government Official Information and Meetings Act extends to information that a local authority is entitled to access under a contractual arrangement.134

3.70The right of public access to information held by cemetery managers therefore depends on the type of cemetery or burial ground and the statutory obligations. Direct public requests for access to information can only be made to public crematoria under the official information legislation (unless the contractual extension provision applies) not private crematoria. Requests for information about private crematoria could however be directed to the Ministry of Health.

3.71The provision of information in response to a request under the official information legislation will depend on the applicable withholding grounds (which include the protection of personal privacy, including the privacy of deceased persons)135 and the balance of the public interest.136

3.72In chapter 7 we consider options for reform of the information provisions.

117Final Words: Death and Cremation in New Zealand, above n 84.
118Births, Deaths, Marriages, and Relationships Registration (Prescribed Information) Regulations 1995, reg 7(a)(xv). In relation to cremation, “disposal” is defined in reg 2(1) as the cremation itself, not the putting or scattering of ashes in any place.
119See Law Commission Public Registers, Review of Privacy Stage 2 (NZLC R101, 2008) at [2.24].
120Provisions relating to death certification that originally were located in Part 6 of the Births, Deaths, Marriages, and Relationships Registration Act 1995 were shifted to Part 7 of the Burial and Cremation Act in 2008. These provisions are discussed in Final Words: Death and Cremation in New Zealand , above n 84.
121Births, Deaths, Marriages, and Relationships Registration Act 1995, ss 42(1) and 48(1). See generally Department of Internal Affairs Before Burial or Cremation <www.dia.govt.nz>.
122Births, Deaths, Marriages, and Relationships Registration Act 1995, s 51.
123Section 78G.
124Section 78H.
125Section 74(3). Searches for statistical or research purposes are subject to s 75G.
126Burial and Cremation Act 1964, s 50. This section extends to denominational burial grounds and the trustees of private burial grounds by virtue of sch 1 to the Act.
127Law Commission “Survey of Cemetery Trustees” (April 2012).
128A “cremation authority” is defined in regulation 2 as “any person or body of persons for the time being having the control and management of a crematorium.”
129Cremation Regulations 1973, reg 9(1).
130Form H of sch 1 to the Cremation Regulations requires the following matters to be recorded: consecutive number of application for cremation, full name of deceased, sex, age, date of death, place of death, date of Medical Referee’s permission or other authority, date of cremation, method of disposal of ashes, date of disposal of ashes, signature of person receiving ashes, ground of recipient’s claim (i.e. applicant for cremation; relative of deceased – relationship to be stated).
131Administering bodies of “reserves” as defined in the Reserves Act 1977 (other than a Minister of the Crown or a department) are included in Schedule 1 to the Local Government Official Information and Meetings Act 1987, and are therefore subject to Parts 1 to 7 of that Act. One of our proposals in chapter 7 is that local authorities be required to review and update the Reserves Act classification of existing unclassified cemeteries.
132However the Privacy Act 1993 generally only applies to information about a living individual: s 2(1) definition of “individual”.
133Official Information Act 1982, s 2(5).
134Local Government Official Information and Meetings Act 1987, s 2(6).
135Local Government Official Information and Meetings Act 1987, s 7(2)(a). Other withholding grounds include prejudice to commercial position, s 7(2)(b)(ii) and prejudice to measures protecting the health and safety of members of the public, s 7(2)(d).
136Local Government Official Information and Meetings Act 1987, s 7(1).