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.
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.
8.62Hence, 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.
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.
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.
8.73Today, 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.
8.77Given 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.
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.
8.82Another 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.
8.85We 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.
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.