Contents

Chapter 8
Cremation: sector overview and policy issues

Assessment of the framework

8.49In this section we raise for consideration some of the policy issues arising in relation to two of the key policy drivers identified:

8.50Our preliminary view is that the regulatory framework could be improved to enhance the protection of these interests. From our research we think that there may be gaps in guidance for the cremation sector on best practice, and a lack of transparency and rigour in approvals, inspection and auditing processes.

8.51We also consider potential policy issues in relation to establishing new crematoria under the resource management process, and whether there are issues in relation to adequate access to cremation services.

Respectful treatment of the body and ashes

8.52As noted throughout this Issues Paper, we do not accept the assertion that no further harm can come to a person after they are deceased. Misconduct towards human remains is a criminal offence in New Zealand.350 Respectful treatment is expected of crematorium operators at all stages: when receiving and storing the body, during the cremation itself, and in the handling and disposal of ashes. Ashes are the final tangible manifestation of the body and must be correctly labelled, handled and returned to the family.
8.53 There is no evidence of systemic problems or failures in the handling of deceased bodies by the cremation sector, although over the last few years the news media have reported on certain localised issues and individual one-off allegations and problems relating to the operation and processes of crematoria. These reports have included allegations against a crematorium of multiple simultaneous cremations without consent (refuted by the crematorium concerned); allegations against the same crematorium concerning the bulk disposal of a collection of metal bodily implants from the crematorium beneath a grave (also refuted by the crematorium concerned);351 an operational problem with the cremation of an obese deceased person that resulted in black smoke and odours that gave rise to concerns in the local community;352 a funeral director’s failure to inter the ashes of an elderly couple for several years due to a “procedural glitch”;353 the failure of an Australian cremation company in delivering only part of the ashes of the deceased;354 and a mix up resulting in the wrong body being cremated and farewelled at a Hamilton funeral service.355
8.54Overseas, we are aware that there have been examples of more egregious compliance failures that resulted in reviews of the applicable regulatory framework.356

Regulatory guidance

8.55The Regulations do not contain provisions dealing with receipt or storage of the body before cremation, apart from the attendant’s duty to check that the form for permission to cremate matches the identity of the person presented for cremation.357 The risk of pacemakers or other biomechanical aids exploding within the furnace is addressed by requiring the medical referee to certify that the body does not contain a pacemaker or other biomechanical aids or that they have been removed.358

8.56On many matters, the Cremation Regulations are silent, such as how bodies should be received or stored while awaiting cremation (for example, minimum or maximum waiting times after receipt of a body and before cremation) or prohibited practices during cremation (such as commingling of ashes from different bodies). These matters may be provided for in the crematorium’s bylaws, but doing so is not mandatory.

8.57On other matters the Regulations give only partial guidance: for example, ashes should be retained for a “reasonable time”, but this could reasonably be interpreted as anything from several weeks to several months or even years.359 The Regulations also require crematoria to be satisfied that delivery of ashes to a particular person is “proper” if there are objections from other family members, but how they should go about doing this is unclear.360
8.58At present, section 40 of the Act envisages a broad range of matters will be covered by crematoria bylaws (such as “the manner and method in which cremations shall be carried out”). However, because bylaws are optional not all crematoria will have them, and they will vary in their comprehensiveness. Nor does the model bylaw provide much detail about certain matters, such as commingling of ashes, the storage of remains, or the appropriate treatment of cremains.361

Industry guidance

8.59 A potential issue is a lack of guidance about best practice on a range of issues. The establishment of a new Cemeteries and Crematoria Collective may fill the current gap in leadership and guidance in the sector.362 One of the objectives of the Collective is to develop a code of practice for cemeteries and crematoria to ensure that deceased and their families receive a professional, safe and high quality service. The Funeral Directors Association of New Zealand (FDANZ) has also recently issued guidance for funeral directors who deal with ashes.363 It recommends that funeral homes keep thorough records of who has a right to claim the remains and instructions for disposal or retention. Where no one can be found to take the ashes, FDANZ recommends making every reasonable attempt to contact the family; advising the applicant for cremation via registered mail that, unless instructions are given within 28 days, disposal will proceed at the crematorium’s discretion; and advertising in local newspapers. It also provides a form to record actions taken over unclaimed ashes. FDANZ suggests that if after at least five years they have not been claimed, the ashes should be respectfully buried or scattered, for example at a local “beauty spot”.
8.60Our preliminary consultation suggests there is a perception in the industry that further guidance and clarity around best practice would be desirable.364 It is apparent that dealing with unclaimed ashes is an area where best practice guidance might be useful,365 and possibly also in relation to the cremation of the pets of the deceased.

Detecting and reporting evidence of criminal conductTop

8.61One of the key tasks of the Act, in conjunction with the Coroners Act 2006, is to provide a process for triaging reportable and non-reportable deaths. Non-reportable deaths can proceed according to usual processes of disposition. Reportable deaths – including deaths that were “without known cause, suicide, or unnatural or violent” – must be referred to the Coroner.366 This enables the cause of death to be ascertained as precisely as possible, so that suspicions of foul play, homicide or neglect of human life can be fully investigated. The ultimate objective of this process is to “identify practices that have cost human lives and then to modify and eliminate them”.367

8.62Hence, there must be robust regulatory measures to guard against the misuse of cremation to conceal evidence of crime or neglect, whether intentionally or inadvertently, and to help minimise the risk of evidence being lost accidentally through errors or oversights. These measures must reflect the public interest in coronial processes being properly carried out, and they must enable the relevant offence provisions of the Act to be adequately policed and enforced.

8.63We believe consideration could be given to strengthening the regulatory framework at four key points:

8.64There is no evidence of systemic problems or failures in the cremation sector. We are not aware of any concrete examples of evidence of crime or neglect being destroyed in the cremation process. However the lack of regular and thorough inspections or external monitoring (other than of emissions) reduces the opportunity for any problems or potential problems to be detected. In our assessment, the existing framework has some potential weaknesses that create unnecessary risks of failures occurring and which therefore may fail to provide adequate public assurance.

Death certification

8.65Obtaining a death certificate is slightly more onerous where cremation is chosen, reflecting the perceived risk of the use of cremation to conceal evidence of neglect or criminal conduct. As well as obtaining a death certificate, those applying for cremation of a body must obtain a second medical certificate containing additional information about the circumstances surrounding the death.368 Last year, it was reported that district health boards were working to end the inconsistent charging practices of doctors for providing cremation certificates.369
8.66We examined the certification process in an earlier Issues Paper and asked questions about some preliminary options for reform.370 Our preliminary analysis was that despite onerous certification requirements, the system provides limited value because of the lack of independent auditing. We have received submissions on these questions and will develop recommendations in this area in our Final Report. At this stage, we draw attention to the discussion in the earlier Issues Paper.

Approval of operators

8.67Crematoria operators are not required to be licensed. However, as outlined above, they must go through a two-stage approval process by the Ministry of Health before they can begin to operate. All crematoria, whether local authority-controlled or private, must be approved in this way. This approvals process constitutes an indirect but potentially crucial safeguard against a crematorium being operated in a way that would allow evidence of crime or neglect to be intentionally or inadvertently destroyed in the cremation process.

8.68For these reasons, it is important that the approval process is robust. At present, however, is not clear whether police or background checks are routinely carried out, or whether the applicant must have a thorough understanding of the essential public interests that lie behind the death certification process and the need for rigorous record-keeping. Applicants are required to provide evidence of their suitability; however, it is not clear what criteria are applied in assessing this evidence. There is a case, in our view, for formalising the current ad hoc approach to approvals.

Record-keeping and inspections

8.69Recording and auditing information about individual cremations is crucial to preventing and detecting criminal conduct or neglect and to providing public assurance that there is adequate oversight of crematorium operators. External auditing helps ensure that records are being properly kept and reduces the risk of systemic failure.

8.70Under the Cremation Regulations, various processes must be gone through before the Permission to Cremate form can be filled out by the medical referee and cremation can proceed. The attendant must verify that the identity of the deceased matches the details on the Permission to Cremate form, although the Regulations do not require any record of this identity verification process to be kept. The Permission to Cremate form must be retained at the crematorium along with all other relevant documentation.

8.71The Regulations provide for the records to be inspected “at any reasonable hour”. The crematorium itself can be inspected “at all reasonable times”. The Regulations are not explicit, but this could perhaps involve checking that all cremations have been accompanied by the Permission to Cremate form, or that the attendant has proper identity verification processes in place.

8.72However, there is a lack of transparency about how often inspections occur and what is examined. Ministry of Health guidance for inspections of crematoria (as part of the inspection of cemeteries) is minimal, with the checklist noting only that the inspector must record the general condition of the building, check that the list of medical referees is current, check that records of cremation are being kept, and inspect the furnace area.371

Community consultationTop

8.73Today, crematoria can be found in a variety of locations: city, urban, or rural; residential, commercial or mixed use areas. No blanket restrictions apply as to location. Modern technology allows cremations to be carried out discretely with minimal emissions, allowing establishment of crematoria in a range of settings provided they comply with the relevant district planning laws. Figures from the Ministry of Health suggest that most new cremators established in recent years were installed in existing funeral homes, which are often located in commercial, mixed use or residential zones.

8.74The placement of crematoria within communities requires an assessment of the impact of their emissions on the physical environment; however, there are also less tangible impacts on the environment, such as cultural or recreational enjoyment of an area, or the commercial attractiveness of an area. If the proposed location is close to social activities, cafes, or residential areas, it may be considered inappropriate or distasteful for bodily disposal to occur close by. There may be individuals or groups with specific cultural, religious or spiritual objections. In such cases it may not be appropriate to grant consent without providing an opportunity for those who live and work near a proposed crematorium to have their say.

8.75These factors fall within the assessment of environmental effects under the Resource Management Act as they are relevant to the amenity of the area. However, the extent to which local residents and businesses can comment on the proposed location of the crematorium will vary according to the district plan of the particular local authority.

8.76When a person applies for resource consent to open a crematorium at a specific location, the local authority will first decide whether the application should be notified, which in turn determines whether the public or affected members of the public can make submissions on it. We note that an application for a Christchurch crematorium was non-notified because of the business zoning of its proposed location and ultimately granted consent in 2010. However, local businesses have since expressed their concern that it is not an appropriate location for a crematorium.372 Whether the consent is granted will depend on the local authority’s assessment of environmental effects, in light of the status of operating a crematorium under the relevant plan, and any assessment criteria or standards contained in the plan.

8.77Given the unique function of crematoria, some people might expect that the need for community consultation would be recognised within the regulatory framework. The Ministry of Health’s approval process requires the applicant to have the necessary consents, but does not necessarily examine the appropriateness of the proposed location. In theory this should be adequately addressed by the resource consenting process, but it will depend on the detail of the particular plan.

Access to cremation servicesTop

8.78 The other side of the issue concerns the availability of cremation services to those who want them. Cremation is a cost-effective, convenient and accepted method of disposition amongst a large segment of the population, and in some areas of the country it is significantly preferred to burial.373 People may have a strong preference for cremation for cultural or religious reasons, for reasons of cost, or because they would like to be able to scatter ashes in a particular place, either in New Zealand or overseas.
8.79There are considerable differences in the distribution of crematoria throughout the country. This may mean some people who have a strong preference for cremation are required to travel significant distances.374

8.80Where cremation services are available, we note that increased vertical integration of the industry may make it more likely that those opting for cremation, and who use a funeral director, are directed towards using that director’s own cremation facilities. Consumer issues relating to the cost of funeral services and the bundling of funeral services are discussed in Part 2.

8.81On the question of cost, preliminary research suggests significant differences in the cost of cremation around the country, and some Local Authority Survey responses confirmed that local authority crematoria generally offer cheaper cremation services than private crematoria operators, although this is not universally the case.375

8.82Another factor affecting the provision of public cremation services is the level of investment required in maintenance and upgrade of plant. As noted above in the discussion of industry trends, local authority crematoria can require significant investment to upgrade or replace their cremators, as these cremators tend to be older, larger and more expensive to maintain (as they are designed to handle larger numbers of cremations) than the newer smaller cremators that are being installed in funeral homes.

8.83These factors have led us to consider whether there are gaps in the provision of cremation services within a reasonable distance, and for a reasonable cost, that might need to be addressed in the regulatory framework. However, demand for cremation in less populated areas is necessarily lower and it might be unreasonable to expect that every district of New Zealand will have cremation services in the immediate vicinity.

8.84 In theory, low barriers to entry in this market should facilitate increased competition, greater consumer choice and lower prices.376 If private providers are adequately meeting demand, it may not cause concern that there are no local authority providers. However, we are not aware of any private crematoria that will accept bodies directly from the public for cremation (without engaging a funeral director) while at least two local authorities (Nelson and Hamilton) do provide this service.

8.85We note that section 25 of the Health Act 1956 enables the Minister of Health to require the local authority to provide cremation facilities, thus providing a backstop power if the lack of provision in a particular local market unduly impacts a community’s access to cremation services (although to our knowledge, the provision has never been used).

8.86What is important, in our view, is for local authorities to periodically assess demand for cremation services in their areas, the strength of private competition and the opportunities for local authorities to meet any residual demand on a cost-effective basis, whether through partnerships arrangements with private providers or as a local authority-controlled venture.

8.87 At this stage of our analysis we do not see a case for specifically addressing the issue of access to cremation services (including cost) through specific regulatory reform, although in Part 2 we discuss the option of requiring funeral services providers to unbundle their services, including cremation. However, we welcome comments on the question of access from the public and interested parties.

Preliminary observationsTop

8.88As noted in this chapter, although there are anecdotal accounts of problems arising, there is not necessarily evidence of serious systemic or compliance failure in the sector. Modern computerised equipment provides the opportunity for thorough monitoring and record keeping by operators and our preliminary consultation suggests that operators take their responsibilities seriously in the key areas of emissions, cremation approvals, certification and record keeping. There is also a strong reputational imperative to ensure compliance and reliability.

8.89Therefore, we do not base this discussion on documented compliance failures; rather our review is a stocktake of the framework in light of key changes that have occurred since it was established, and the influential public interests raised in this area. In our preliminary assessment, a number of significant changes to the cremation sector warrant the review of the regulatory framework to ensure that it is fit for purpose.

8.90First, the number of cremations has risen steadily over the years and cremation is a far more common method of disposal for New Zealanders than when the regulatory framework was first developed. While public interest in natural burials may be predicted to increase, the relative cost comparison will mean that cremation is likely to remain the choice of the majority of New Zealanders for the foreseeable future. In our view, the popularity of cremation creates an imperative to modernise the regulatory framework, in order to provide the public with adequate assurance that it remains robust and effective to meet public expectations.

8.91Second, the make-up of the sector has changed significantly, with the number of private sector providers notably increasing because of the availability of lower cost plant and equipment. This in our view creates an imperative to ensure that the regulatory framework is calibrated to the mix of providers and arrangements that make up the sector. Currently, for example, the framework contains features and powers that are not used in practice. The increasing diversity of the sector also highlights a lack of consistent minimum standards. Some members of the sector have begun to call for more stringent checks to protect the sector’s integrity.

8.92Third, as noted in relation to the cemetery sector, the wider legislative environment has changed significantly with the enactment of the Local Government Act and the Resource Management Act and the devolution of decisions about local activities to local government. The intersection of the framework with this legislation could in our view be improved, with the potential for local government to have a larger oversight role in place of current central government powers.

8.93Fourth, other comparable countries have taken steps to strengthen their regulatory frameworks (features of which we explore in chapter 9), either through periodic reviews, or in response to one-off compliance failures. This leaves New Zealand’s regulatory framework appearing relatively light by comparison. The requirements of the Cremation Regulations are minimal and focus on a narrow range of issues such as emission standards and physical operation of the plant. As noted in the first Issues Paper on death certification, although there are reasonably strong requirements around identification, certification and record keeping, they are of limited valued because of the lack of consistent auditing. Arguably, current regulation does not provide the necessary degree of public assurance that adequate minimum standards are being consistently met.

8.94In addition to these influential changes, we are mindful of the potential risk of serious harm should the framework prove to be inadequate. The public interests that operate are significant: for example, public safety, maintenance of the law, and public sensitivity to any breaches or failures to accord respect and dignity to the deceased and their families.

8.95We are also mindful of the real risk in this sector that compliance failures may be hidden and unlikely to be uncovered. This risk is due to the nature of cremation processes, rather than the risk of unscrupulous operators. This in our view creates an imperative to ensure levels of oversight are set at an appropriate level to provide public assurance.

8.96Finally, we note the asymmetries between regulatory requirements for the purpose of environmental protection, and regulatory requirements directed at other public interests such as the protection of law and order. Crematoria operating under resource consent conditions for emission levels are subject to reporting obligations with respect to those emissions, and these records must be regularly submitted to the regional authority. Records of the numbers and timing of cremations will need to be kept to demonstrate compliance with consent conditions. These records would arguably provide valuable data for audit purposes from a law enforcement perspective. For example, the data could be checked for discrepancies between the number of recorded cremations and the number of recorded firings.

8.97On this basis of these various factors, we have reached the preliminary view that consideration of greater rigour in the framework is warranted.

350Crimes Act 1961, s 150.
351Iulia Leiliua “Native Affairs - Grave Concerns” Māori Television (29 April 2013). See R v Young, (1984) 1 CRNZ 568 where a funeral director’s conduct in cremating the bodies of babies with unrelated adults was found to be an offence under s 150(b) of the Crimes Act.
352Olivia Carville “Cremation of 230 kg body goes wrong” Fairfax Media (online ed, New Zealand, 4 May 2012).
353Libby Middlebrook “Funeral failings” Fair Go, TVNZ (13 June 2012) <http://tvnz.co.nz>.
354Blair Ensor “Crematorium makes urn mistake” The Dominion Post (online ed, Wellington, 19 March 2012).
355Fairfax NZ News “Wrong body in coffin” Waikato Times (online ed, 18 July 2008).
356For example, at the Bayview Crematorium in New Hampshire in 2005, authorities discovered 12 sets of unlabelled, unidentified urns filled with ashes, a commingled cremation in process, a decomposing body left in a broken refrigeration unit, and incomplete and forged cremation permits and authorisations. As a result, a task group formed by the Governor of New Hampshire made comprehensive recommendations to improve the oversight of crematoria in the State and the Board of Registration of Funeral Directors and Embalmers is now responsible for crematory inspections. See William Sucharski, Philadelphia Crematory, Inc. “Why Crematory Due Diligence” <http://c.ymcdn.com>. See also Jack Encarnacao “N.H. crematorium probed – grim discovery at unlicensed facility” The Boston Globe (24 February 2005).
357The crematorium authority may set bylaws regulating the casket material.
358Cremation Regulations 1973, sch 1, Form AB.
359Guidelines for the Disposal of Cremated Remains developed by the Funeral Directors Association of New Zealand suggest that ashes should be retained for a minimum of five years before they are disposed of by the crematorium.
360See Burial and Cremation Act 2013 (SA), s 18(1) providing that the crematorium must not release cremated remains except to the person to whom the cremation permit was issued or a person authorised in writing by that person.
361See New Zealand Standards Council NZS 9201.14 (1999).
362The Cemeteries and Crematoria Collective has been established under the umbrella of the New Zealand Recreation Association, an organisation for recreation professionals, following the NZRA Cemeteries and Crematoria Collective Conference in June 2012. The Collective’s terms of reference are available at <www.nzrecreation.org.nz/professional-services>. The Collective’s vision is “to become the lead support and advisory group in the NZ Cemeteries and Crematoria sector” and its purposes are “to lead the sector in delivering the best outcomes to the community and individuals touched by bereavement”, and “to encourage a collective approach to sharing information, knowledge, expertise and professional development in the cemeteries and crematorium sector.”
363See further chapter 10, for a description of the role of FDANZ.
364See Olivia Carville “950 urns await collection” The Press (online ed, Christchurch, 16 July 2010); Kirsty Johnston “Province not tardy on ashes” Taranaki Daily News (online ed, 19 September 2009).
365For example, the Hamilton Park Crematorium Bylaw 2012) provides that ashes not collected within 14 days of cremation will be returned to the funeral director or agent who delivered the deceased to the crematorium. Photo identification is required from the person specified to collect the ashes.
366Coroners Act 2006, ss 13 and 15(2).
367Law Commission Coroners (NZLC R62, 2000) at 1.
368Cremation Regulations 1973, sch 1, Form B.
369Mathew Grocot “End looms for perk known as ‘ash cash’” Manawatu Standard (online ed, 15 November 2012); Sam Boyer “Union: ‘Ash cash’ fee put to good use” The Dominion Post (online ed, Wellington, 15 November 2012); Editorial “Doctors’ double-dipping can’t be justified” The Dominion Post (online ed, Wellington, 19 November 2012).
370Final Words: Death and Cremation Certification in New Zealand, above n 284, at ch 4.
371Checklist for Inspection of Cemeteries at [9], available from the Ministry of Health.
372Sam Sachdeva “Sydenham locals ‘not keen’ on crematorium” The Press (online ed, Christchurch, 14 July 2011); Sam Sachdeva “Crematorium a ‘dead end’ for revitalisation” The Press (online ed, Christchurch, 12 October 2011); Sam Sachdeva “Petition calls for crematorium to go” The Press (online ed, Christchurch, 3 February 2012); Sam Sachdeva “Neighbours complain about crematorium smells” The Press (online ed, Christchurch, 24 May 2012). See also Corey Charlton “Stir over funeral home in shopping centre” The New Zealand Herald (online ed, Auckland, 9 March 2013); David Loughrey “Strong opposition to cremator bid” Otago Daily Times (online ed, 25 May 2010).
373See, for example, Sue Newman “The way to go” Ashburton Guardian (online ed, 9 January 2012); Kasia Jillings “More Rotorua people choosing cremation” Rotorua Daily Post (online ed, 7 January 2012); Greg Taipari “Cremation gaining popularity – even with Maori” Rotorua Daily Post (online ed, 6 April 2010).
374For example, the West Coast, see [8.16] above.
375See Rob Stock “Are we too poor to die?” Sunday Star Times (online ed, Auckland, 6 May 2012) suggesting that the most basic no-ceremony cremation package is $1500. See also Esther Ashby-Coventry “Cremation in Ashburton” South Canterbury Herald (online ed, 21 September 2011).
376See above n 301.