Contents

Chapter 8
Cremation: sector overview and policy issues

The regulatory framework

8.23The regulatory framework for crematoria operates at both national and local level:

8.24In comparison to other jurisdictions, New Zealand’s regulatory environment is relatively light. There are no licensing or training requirements for crematorium operators or employees. The operational detail and standards provided in the Cremation Regulations is also basic. This means actual practices and procedures adopted by each crematorium may vary. This in itself is not necessarily problematic, but the issue, in our view, is whether the current framework provides the necessary level of public assurance that crematoria and their operators are meeting adequate minimum standards.

8.25The cremation process generally takes place out of sight both of the public and the family of the deceased.303 The body is handed over to the crematorium operator and the disposition process usually occurs in a closed setting. This means that any regulatory oversights that might occur during the process are largely hidden from view and it may be difficult for regulatory authorities to obtain accurate or forthright information about them.

8.26A second feature of note is that some aspects of the existing framework were developed at a time when cremation services were largely provided by public bodies. Therefore, these features are not designed for the current make-up of the sector given that the private sector now has greater overall market share.

8.27Our preliminary assessment is that the age of the regulatory framework, the level of change in the sector, and the range of policy issues discussed further below suggest that it would be desirable to update and strengthen the framework.

Burial and Cremation Act 1964

8.28Four aspects of the Act relate directly to cremation: definitions in section 2 (that trigger the application of the regulatory framework), Part 5, aspects of Part 7 relating to death certification, and offences in section 56.

Definitions

8.29A crematorium is defined in the Act as “appliances and machinery and furnaces for effecting cremation”, and includes any building in which such appliances, machinery or furnaces are fixed.304 Any person who has control and management of a crematorium, whether a local authority or a private operator, is defined as a “crematorium authority”305 and is subject to the regulatory regime.

Part 5

8.30Part 5 of the Act deals with requirements for establishing crematoria. Section 38 enables crematoria to be opened and operated by a local authority, either within or outside of the grounds of a cemetery. The provision also anticipates the establishment of crematoria by others besides local authorities. In either case a proposal to construct a crematorium must be submitted for approval by the Minister of Health.306 In practice applications are made in the first instance to a health protection officer or local medical officer of health, who then provides a report on technical matters and a recommendation to the Ministry of Health Public Health team.
8.31Approval is made by the Public Health team on delegated authority from the Minister of Health, and involves an examination of resource consents and an assessment of the specifications and plans of the crematorium against applicable guidelines.307 A second approval to commence operation is required under the Cremation Regulations, discussed below.
8.32A second key provision is section 40, which confers a bylaw-making power on every local authority “with respect to any crematorium under its control”, and sets out the purposes for which crematorium bylaws may be made. This power is extended to any person owning or controlling a crematorium, provided any bylaws are first approved by the Minister.308

Death certification

8.33Other key provisions relating to cremation are the pre-cremation death certification provisions in Part 7. The Act sets out a process for ensuring that, before a body is buried or cremated, any deaths that occurred in sudden, unnatural or violent circumstances are referred to the coroner for investigation.309 The issues surrounding death certification were canvassed in an earlier Issues Paper.310

Offences

8.34Section 56 of the Act provides for the following offences:

8.35 The Crimes Act offence of misconduct in respect of human remains is also part of the overall regulatory framework that applies to the provision of cremation services:311
Everyone is liable to imprisonment for a term not exceeding 2 years who—
(a) neglects to perform any duty imposed on him by law or undertaken by him with reference to the burial or cremation of any dead human body or human remains; or
(b) improperly or indecently interferes with or offers any indignity to any dead human body or human remains, whether buried or not.
8.36 In R v Mills, “indignity” was said to require “unworthy, contemptuous or insolent” conduct.312 In R v Young, the High Court held that to place a child’s body in a casket containing the body of someone unrelated to the child, for the purposes of cremating it, is to offer an indignity to the dead body of the child; and to bury or cremate a body with the bodily organs not replaced, or to include in a burial casket the bodily organs of another person, is likewise to offer indignity within the meaning of section 150(b) of the Crimes Act.313

Health Act 1956Top

8.37Crematoria are included in the definition of “sanitary works” in section 25(1) of the Health Act. This section empowers the Minister of Health to require any local authority to provide, alter or extend any sanitary works such as crematoria, or require any two or more local authorities to combine to provide, alter or extend any such sanitary works.314

Cremation Regulations 1973Top

8.38The Regulations contain much of the substance of the regulatory framework applying to crematoria. The Regulations were first introduced in 1928 and have been amended only in superficial ways since coming into force. They contain establishment and operational processes and requirements, including:

(a) the application process, the forms that must be filled out and the records that must be kept for each individual cremation;315
(b) the processes that must be gone through before a body can be cremated, including completion of an additional medical certificate,316 and completion of the Permission to Cremate form by the medical referee;317
(c) providing for the duties of the crematorium attendant and registrar:318
(d) requiring that the crematorium be maintained “in good working order and in a clean and orderly condition”;322
(e) dealing with the return of ashes to the family and the retention and disposal of unclaimed ashes;323
(f) providing for inspections of the crematorium324 and its register and records325 which must be carried out by a medical officer of health or health protection officer;326 and
(g) restricting the cremation of bodies other than in an approved crematorium, unless the medical officer of health has granted permission to cremate the body elsewhere.327
8.39As well as the Act’s requirement for ministerial approval before construction begins,328 the Regulations also require approval to begin using the crematorium.329 Approval is formally required by the Minister, but again, this has been delegated to the Ministry of Health Public Health team.330
8.40The Minister is also empowered to direct the closure of a crematorium and can do so on two grounds:331

Crematorium bylawsTop

8.41Bylaws are a form of subordinate legislation that give local authorities the flexibility to respond to particular issues within their district or region and to respond in a manner that is appropriate for their particular community.333 As noted in chapter 5, bylaws are the central tool by which local authorities manage cemeteries under their control. The Act provides for a specific type of bylaw in relation to aspects of crematorium operation. These bylaws may be made for a range of purposes set out in the Act, relating to the maintenance and protection of the crematorium, the manner and time cremations are carried out, the extent of public access, and fixing fees.334
8.42There is no obligation to have crematorium bylaws or that the bylaws cover the matters mentioned above. For example, the Hamilton City Council has detailed bylaws for its Hamilton Park Cemetery and Crematorium.335 Other local authority crematoria bylaws are brief by comparison.
8.43The New Zealand Standards Council has released a model bylaw relating to the operation of cemeteries and crematoria,336 of potential application to crematoria “maintained by [a] Council”.337 The model bylaw is relatively brief, providing some further detail about how long unclaimed ashes should be stored by a crematorium,338 the fact that the casket should be made of an approved combustible material, and that the Council can determine the hours of operation of its crematorium.

Resource Management Act 1991Top

8.44Another part of the regulatory framework is the Resource Management Act, the purpose of which is to promote the sustainable management of natural and physical resources.339 The resource consent process is the key stage at which community interests relating to the location of a crematorium are taken into account. A proposal to construct a crematorium may require resource consent in relation to land use; however this will depend on the rules contained in a local authority’s district plan and the policy objectives that underpin these rules.340
8.45If a resource consent is required for the proposed activity, the local authority must also consider whether the consent should be notified, limited notified, or non-notified. A notified consent is one on which the public can make submissions, and on which any submitter may appeal the decision of the local authority to the Environment Court. Limited notification may confer this right on a smaller part of the community, such as close neighbours. A non-notified consent has no formal submissions process. Whether the consent is notified or not depends largely on the particular district plan and whether the proposed activity or building is controlled, discretionary or restricted discretionary under the district plan. The authority also has a residual discretion to notify the consent, and must publicly notify the application in certain circumstances, such as where the proposed activity is likely to have adverse environmental effects.341

8.46All consents must be assessed for their effect on the environment and in some cases must consider alternative locations for the proposed activity or building. Similarly, all consents require Māori interests to be taken into account, through:

8.47The Resource Management Act also requires particular regard to “the maintenance and enhancement of amenity values”,345 which are defined as “natural or physical qualities and characteristics of an area that contribute to people's appreciation of its pleasantness, aesthetic coherence, and cultural and recreational attributes”.346
8.48An application to build and operate a crematorium may also require a resource consent for emissions.347 High temperature hazardous waste incineration is prohibited in New Zealand under clause 12 of the Resource Management (National Environmental Standards for Air Quality) Regulations 2004. However, crematoria are exempt from this prohibition. Nevertheless, the consent for emissions is typically subject to a range of conditions aimed at regulating and monitoring the physical effects of the crematorium on the surrounding environment; for example, it might specify required incineration temperature; composition and volume of emissions; permitted numbers of cremations per day or per year; and permitted times for cremation.348 Air quality officers expect cremators to perform to standards similar to those prescribed for incinerators used to burn health care waste.349 Operators are usually required to maintain a detailed log of their emissions and discharges, and must submit this data to the regional authority annually. The consent must be periodically renewed.
303The closed nature of the cremation was said to be a factor in last year’s “home cremation” case where a family wished to be present for the cremation but were denied access for health and safety reasons: “Cremation sparked by access denial” The Southland Times (online ed, 5 April 2012); “Body taken after family denied entry” The Press (online ed, Christchurch, 6 April 2012). However, some crematoria have viewing windows where the family can see the entry of the casket into the cremator; closed circuit cameras which video every entry into the cremator; or hold “open days” where the public are invited “behind the scenes”: see Francesca Lee “So, this is how it all ends?” The Press (Christchurch, 18 May 2013); Matt Rilkoff “Living line up for tour of region’s hottest spot” Taranaki Daily News (online ed, 25 January 2012); Fairfax NZ News “Crematorium opens doors” (12 September 2007).
304Burial and Cremation Act 1964, s 2.
305Cremation Regulations 1973, reg 2.
306Burial and Cremation Act, s 38(2).
307For example Australian/New Zealand Standard: Management of clinical and related wastes. AS/NZS 3816:1998. According to guidelines available from the Ministry of Health, Guidelines for Establishing New Crematoria (2004), applicants are required to provide information relating to the company and/or names and addresses of the persons who will own and operate the crematorium, along with evidence of their suitability, details of any proposed crematorium bylaws, the names and addresses of the persons who are to act as medical referee, registrar and attendant, details of test firing procedures and a report on any test undertaken. See also Ministry of Health Guidelines on the Siting and Construction of Crematoria (1992).
308Burial and Cremation Act, s 40(2). We understand that few if any private providers have utilised this provision; rather, the focus is on the operating constraints of resource consent conditions.
309Sections 46AA-46C.
310Final Words: Death and Cremation Certification in New Zealand, above n 284.
311Crimes Act 1961, s 150.
312R v Mills (1992) 77 CCC(3d) 318 (CA); J Bruce Robertson (ed) Adams on Criminal Law – Offences and Defences (online looseleaf ed, Brookers) at CA 150.02.
313R v Young (1984) 1 CRNZ 568; Robertsonabove n 312, at CA 150.02.
314We understand from the Ministry of Health that this power has not been used in the last 25 years, if ever.
315Cremation Regulations 1973, regs 5 and 9, sch 1 (Form A).
316Schedule 1, Form B.
317Regulation 7(8), sch 1 (Form F). Medical referees are nominated by the crematorium operator and must be registered medical practitioners of at least five years’ standing. Their role is to ensure that individual cremations may properly proceed, including verifying the cause of death and the identity of the deceased, and checking that all reportable deaths have undergone the required coronial process before the body is cremated: see regs 6 and 7.
318Regulations 9 and 10.
319Regulation 10 authorises the attendant to require the opening of the casket for the purposes of identity verification if necessary.
320Schedule 1 (Form H). The form lists the deceased’s full name, sex, age, date and place of death, date of permission or authority to cremate, date of cremation, method and date of disposal of the ashes, the signature of the person receiving the ashes, and the nature of the recipient’s relationship with the deceased.
321Regulation 9(3).
322Regulation 3(4).
323Regulation 8. Unclaimed ashes must be retained and either stored for a specified period of time or decently interred or scattered by the crematorium authority.
324Regulation 3(6).
325Regulation 9(3).
326See also Health Act 1956, s 7A, in relation to the designation of medical officers of health and health protection officers.
327Cremation Regulations 1973, reg 4(1). See also reg 11. See, for example, media reports last year on a “home cremation” held in Southland where the deceased was cremated on a large fire over two days on the family farm without the necessary consents: Evan Harding “Family holds home cremation” Fairfax NZ News (online ed, New Zealand, 4 April 2012); Editorial “Ashes to ashes” The Southland Times (online ed, 5 April 2012). Police investigated but did not lay charges.
328 Burial and Cremation Act, s 38(2).
329Cremation Regulations, reg 3(1).
330This secondary approval requires a successful test firing of the cremator in the presence of the local health protection officer, and assesses the suitability of the applicants to operate a crematorium.
331Cremation Regulations, reg 3(3). We understand from the Ministry of Health that this power has not been used, at least in the last 25 years, if ever.
332See [8.35] above.
333See Dean Knight “Power to Make Bylaws” [2005] NZLJ 165.
334Burial and Cremation Act, s 40(1).
335Hamilton City Cemeteries and Crematorium Bylaw 2012. The bylaw contains several provisions on permitted casket materials, fittings and dimensions; and detailed provisions on permitted locations for ash interments.
336New Zealand Standards Council NZS 9201.14 (1999), s 1412. The model bylaw covers matters such as the period of retention of ashes, casket materials, hours of operation, restrictions on the opening of caskets and the deposit of documentation with the manager.
337For example, Rotorua District Council has adopted the model bylaw in respect of the Rotorua Cemetery and Crematorium: Rotorua District Council General Bylaw (2011).
338An approved urn containing the ashes may be left for 14 days free of charge at the crematorium. After three months the Council may dispose of the ashes in accordance with the Cremation Regulations.
339Resource Management Act 1991, s 5.
340For example, permitted activities do not require resource consent.
341Resource Management Act, s 95A.
342Section 6(a).
343Section 7(a).
344Section 8.
345Section 7(c)
346Section 2(1).
347See Graham and Bingham, above n 284, at [8.1]. See also Chrystall and Rumsby, above n 284, at [3.2.10]–[3.2.11].
348 For an example of a non-compliance notice for resource consent breaches, see Jimmy Ellingham “Cremations moved after complaint” Manawatu Standard (online ed, 23 October 2010).
349As noted in the Guidelines for Establishing New Crematoria (2004), available from the Ministry of Health.