Contents

Chapter 9
Cremation: options for reform

Guidance, standards and self-regulation

A code of practice for crematorium operators

9.5The Funeral Directors Association of New Zealand binds its members to a code of ethics and professional conduct and has begun to issue non-binding guidance to its members, for example relating to the handling of ashes.378  However, we have no nationally recognised code of practice or conduct for crematoria operators in New Zealand, and no legislative requirement that a crematorium must develop its own code of practice. We note, however, that the newly formed Cemeteries and Crematoria Collective is supporting moves to create a code of practice for New Zealand crematoria operators.

9.6We have found examples of codes of practice or codes of conduct used in many overseas jurisdictions. Some deal with specific operational matters. Some are more broadly-framed guidelines for ethical behaviour.

9.7In Alberta, Canada, every crematorium must have a code of practice governing the conduct of individual cremations covering at least identification, storage procedures and record-keeping; this is required by the Funeral Services Act 2000.379  Overseas industry groups also release codes or guidelines that act as “best practice” standards for industry members to comply with, such as the United Kingdom Federation of Burial and Cremation Authorities’ “Code of Cremation Practice,”380  and the Cremation Association of North America’s “Recommended Procedures”, which cover identification, holding requirements, cremation, and processing, packaging and disposal of ashes.381
9.8The Australasian Cemeteries and Crematoria Association publishes a code of ethics on its website that includes requirements to provide exemplary service, to acknowledge and respect the importance to the bereaved and the community of burial and cremation services, and to be conscious and considerate of diverse religious, ethnic and cultural backgrounds and needs.382

Regulatory standardsTop

9.9 In our view, there is a case for expanding the Cremation Regulations so that baseline standards are clearly articulated. More robust, precise and consistent requirements for the handling of human remains would help ensure consistent respectful treatment of the deceased, reassure families who must place a high level of trust in crematoria operators, and bring increased certainty and clarity to crematoria operators.

9.10We note that overseas regulatory frameworks include a variety of provisions for the handling of human remains during the cremation process that could be assessed for adoption in an updated version of the Regulations. We are not suggesting that all these provisions be adopted, but that the examples provide a useful tool for review. For instance, we have found the following express requirements in other regulatory frameworks:

9.11As well as specific provisions, there is also the option of additional regulatory safeguards. For example, in South Australia, new legislation provides that a person may not be cremated unless the Registrar of Births, Deaths and Marriages has issued a cremation permit.392  We also note that some frameworks have more detail about the responsibilities of the crematorium manager for the operation of the crematorium and the conduct of employees, and their duty to ensure that cremations are performed by adequately trained and supervised persons.393

9.12For ashes specifically, the Regulations could include provisions such as:

9.13This is not an exhaustive list of the matters covered overseas but not mentioned in our Act or Regulations. They give some idea, though, of the scope of additional issues that could or should be addressed in a regulatory framework to ensure the proper standards for the handling of human remains.

9.14Some of the standards may be considered so fundamental or important that they should be included in primary legislation (that is, in the Act or its eventual replacement), rather than in secondary legislation (the Regulations). For instance, the Ontario statute prohibits the operation of a crematorium without a licence.398 The Alberta statute requires the retention of unclaimed ashes for one year.399 The British Columbia statute includes timeframes, the right to require visual identification of remains, and basic container requirements.400

Crematoria bylaw reformTop

9.15As we noted in the previous chapter, crematorium bylaws allow operators some flexibility to self-regulate in certain areas. If the Regulations are revised to provide clear standards through a greater level of detail, the formal bylaw mechanism may no longer be needed as part of the regulatory framework. In that case, crematoria would still be able to develop suitable policies to suit their circumstances within the parameters of the regulatory framework. However, it may prove useful to retain a method by which individual crematoria can opt to select their own particular rules in certain areas. For example, a certain matter might be governed by regulation, while permitting an individual crematorium to explicitly depart from the default position if it so chooses.

9.16For instance, the Ontario cremation regulations impose a general prohibition on animal cremations, unless specifically authorised by the crematorium’s bylaws.401  This recognises that there may be significant local demand for animal cremations, which would be permissible if properly regulated by the crematorium. The Ontario regulations also contain additional restrictions that can only be departed from with written and signed consent of the person purchasing cremation services. These restrictions relate to cremation of more than one person at once, cremation of human and animal remains together, and the commingling of cremated remains.402

9.17Flowing on from this is the question of whether the model bylaw issued by the New Zealand Standards Council could be more detailed. At present it covers a limited number of issues and in minimal detail. A more detailed model bylaw might provide valuable assistance for crematoria operators who have indicated there is a lack of guidance. Alternatively, a code of practice for crematorium operators might fulfil the same function.

9.18Another issue to be addressed is the extension of the bylaw-making power to private crematoria (which to our knowledge has never been used). It is relatively unusual for a private entity to have bylaw-making powers. That is a function that is usually associated with a public entity, such as a local authority. The only other example on the New Zealand statute book of a private entity having a power to pass bylaws for its own area of operation is airport authorities, which may include private airports, under the Airport Authorities Act 1966.403

9.19Our proposal is for the role and function of crematoria bylaws in the regulatory framework to be reviewed and reassessed, in conjunction with the review of the Cremation Regulations.

378See ch 8 at [8.59].
379Funeral Services Act RSA 2000 c F-29, Alta Regulation 226/1998, s 36.2.
380Available to members only at <www.fbca.org.uk>.
381Cremation Association of North America “Recommended Procedures for Handling Dead Human Bodies by an Authorized Crematory Authority”<www.cremationassociation.org>.
382Australasian Cemeteries and Crematoria Association “Code of Ethics” <www.accaweb.com.au>. The Association also provides Crematorium Guidelines to members.
383Cremation, Interment and Funeral Services Act SBC 2004 c 35, s 13(1).
384Minnesota Statutes 2012, MN Stat § 149A.95.6a.
385For example, Funeral and Cremation Services Council of Saskatchewan, Bylaws (revised 2012), 8010.
386At 8050. See also Funeral, Burial and Cremation Services Regulation 30/11 SO 2002 c 33 (Ont), reg 186(3); Minnesota Statutes 2012, MN Stat § 149A.95.8.
387Regulation 30/11 186(2)(a).
388Regulation 186(2)(b).
389Regulation 186(2)(c); Minnesota Statutes 2012, MN Stat § 149A.95.16.
390NPC NY § 1517(b)(1); see also Minnesota Statutes 2012, MN Stat § 149A.95.10.
391Funeral and Cremation Services Council of Saskatchewan, Bylaws (revised 2012), 8060; Minnesota Statutes 2012, MN Stat §§ 149A.95.12 and 149A.95.14.
392Burial and Cremation Act 2013 (SA), s 9(1). The maximum penalty is $10,000 or 2 years imprisonment.
393Alberta Crematory Regulation 248/1998, reg 6.5(1). See also Funeral, Burial and Cremation Services Regulation 30/11 2002 SO c 33, reg 22 “person in charge”.
394Minnesota Statutes 2012, MN Stat §§ 149A.95.15.
395Cemeteries Act RSA 2000 c C-3, s 31 (one year).
396Funeral Services Regulation 226/1998 (Alta), reg 36.2(1).
397The Funeral Directors Association of New Zealand has developed a suggested form of ashes register to assist members.
398Funeral, Burial and Cremation Services Act SO 2002 c 33, s 6(1).
399Cemeteries Act RSA 2000 c C-3, s 31.
400Cremation, Interment and Funeral Services Act SBC 2004 c 35, ss 10, 11 and 13.
401Ontario Regulation 30/11, r 189(3), made under the Funeral, Burial and Cremation Services Act SO 2002 c 33.
402Ontario Regulation 30/11, r 186(2).
403​Airport Authorities Act 1966, s 9. An airport authority is defined as any local authority with control over an airport, but also “includes any person or association of persons authorised … to exercise the powers of a local authority” (s 2).