Cremation: sector overview and policy issues
The regulatory framework
8.23The regulatory framework for crematoria operates at both national and local level:
- The Burial and Cremation Act 1964 includes provisions about the establishment, regulation and self-regulating powers of crematoria, death certification provisions and offences concerning cremation. The Crimes Act 1961 also includes an offence of misconduct in respect of human remains.
- The Health Act 1956 empowers the Minister of Health to require local authorities to provide crematoria in their districts.
- The Cremation Regulations 1973 set out operational matters concerning how crematoria are run on a day-to-day basis, and crematorium bylaws or rules may also deal with this.
- The Resource Management Act 1991 and the consenting process also regulate the siting, construction and operation of crematoria, including emissions.
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. 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.
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. Any person who has control and management of a crematorium, whether a local authority or a private operator, is defined as a “crematorium authority” and is subject to the regulatory regime.
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. 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. 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.
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. The issues surrounding death certification were canvassed in an earlier Issues Paper.
8.34Section 56 of the Act provides for the following offences:
- burning a body other than in accordance with the Cremation Regulations (maximum penalty of 500 pounds or imprisonment for a term of 12 months);
- breaching the Cremation Regulations (maximum penalty of 500 pounds or imprisonment for a term of 12 months;
- giving a false certificate to procure cremation (maximum penalty of imprisonment for a term of two years); and
- procuring a cremation or giving a certificate with intent to conceal the commission of an offence or impede the prosecution of an offence (maximum penalty imprisonment for a term of five years).
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:
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. 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.
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.
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;
(b) the processes that must be gone through before a body can be cremated, including completion of an additional medical certificate, and completion of the Permission to Cremate form by the medical referee;
(c) providing for the duties of the crematorium attendant and registrar:
- the attendant’s role is to check that the identity of the person to be cremated matches the person referred to in the Permission to Cremate form prepared by the medical referee;
- the registrar’s role is to keep a register of information relating to all cremations that have been carried out, containing the information set out in the scheduled form, and all related “applications, certificates, statutory declarations, and other documents” which must be marked with a corresponding number and retained by the crematorium;
(d) requiring that the crematorium be maintained “in good working order and in a clean and orderly condition”;
(e) dealing with the return of ashes to the family and the retention and disposal of unclaimed ashes;
(f) providing for inspections of the crematorium and its register and records which must be carried out by a medical officer of health or health protection officer; 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.
8.39As well as the Act’s requirement for ministerial approval before construction begins, the Regulations also require approval to begin using the crematorium. Approval is formally required by the Minister, but again, this has been delegated to the Ministry of Health Public Health team.
8.40The Minister is also empowered to direct the closure of a crematorium and can do so on two grounds:
- if the crematorium authority or any “member, servant, or agent thereof” has been convicted of an offence under section 56 of the Act in relation to that crematorium; and
- if the local authority within whose area the crematorium is situated requests closure and the Minister is satisfied that is “expedient in the interests of health or by reason of a change in the character of the locality”.
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. 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.
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. 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, of potential application to crematoria “maintained by [a] Council”. The model bylaw is relatively brief, providing some further detail about how long unclaimed ashes should be stored by a crematorium, 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. 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.
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.
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:
- recognising and providing for the relationship of Māori with ancestral lands, water, sites, wāhi tapu and other taonga;
- having particular regard to the principle of kaitiakitanga; and
- taking into account the principles of the Treaty of Waitangi.
8.47The Resource Management Act also requires particular regard to “the maintenance and enhancement of amenity values”, 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”.
8.48An application to build and operate a crematorium may also require a resource consent for emissions. 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. Air quality officers expect cremators to perform to standards similar to those prescribed for incinerators used to burn health care waste. 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.