Summary and questions for public consultation

Law and current practice

20People may be surprised to learn how few legal requirements actually apply in the period after death in this country. For example, there is no legal requirement to engage a funeral director or to have a body embalmed. Nor does the Act stipulate how a person should be buried or who has the responsibility to ensure burial or cremation takes place. Essentially, all the law requires is for a doctor to certify the cause of death and for whoever has taken charge of the body to “dispose of it” within a reasonable time.14
21The Act is silent on how the disposal should take place. It simply states that every local authority in New Zealand must provide a “suitable cemetery” and that these cemeteries must be open for the “interment of all deceased persons, to be buried with such religious or other ceremony, or without any ceremony, as the friends of the deceased think proper.”15
22The Act provides no direction for those who may find themselves caught up in an irresolvable dispute over the burial or cremation of a family member, as occurred following the death of James Takamore in 2008. In such cases they must resort to the High Court where a judge decides the merits of the competing claims according to case law. (Not many New Zealanders are aware that case law gives the executor of the deceased’s estate the presumptive right to make the decision if there is a conflict or dispute as to arrangements.)16

23The public may also be surprised to learn that currently anyone is entitled to set themselves up as a funeral director or crematorium operator. No formal training is required and there is no legal requirement for funeral directors or the operators of crematoria to belong to a professional body or to be subject to an independent auditing or complaints process. (Most funeral directors are, in fact, professionally trained and voluntarily comply with the standards set by their own industry body, the Funeral Directors Association of New Zealand.)

24The light-handed regulatory environment described above does not necessarily match most people’s experiences when arranging a funeral and interment or cremation. To begin with, New Zealanders are constrained in their choice as to where they are buried. For example, under the current law it is not usually possible for a person to be buried on their own land – although someone with Māori ancestry may be able to be buried in an urupā (Māori burial ground) associated with their hapū.17 Nor do most people have much choice over the location or type of cemetery in which they are buried as under the current law only local authorities are permitted to establish public cemeteries.18

25As the sole providers of public cemeteries, local authorities are able to decide where cemeteries are established and how they are managed. The Act also empowers them to dictate matters such as when and how burials may take place, the rights of those who enter into contracts for burial and the type of memorials permitted. Local authorities also have complete discretion as to whether different ethnic and religious groups are permitted to establish special areas within the public cemetery.

26The choices bereaved families make about funeral and cremation arrangements are often similarly constrained. Although there is no legal requirement to engage a funeral director, have a body embalmed, or purchase a coffin, the reality is that very few cemeteries or crematoria deal directly with the families of the deceased. Often families do not feel equipped to prepare the body for burial, and as yet there are few alternatives to embalming for those wishing to delay burial and cremation to allow for a tangihanga (funeral rites) or other commemorations of the deceased’s life.

27However this has not always been the case and, for reasons we explain in chapter 2, may not be the case in the future. In some ethnic and religious communities it is vitally important for bodies to be prepared according to custom by members of their own faith. Some also have a desire for a simpler and more direct approach to death and burial, which may involve alternative methods of preservation before a simple interment in a shroud or biodegradable coffin.

28At the moment it can be difficult for those wishing to tailor funeral and burial services to their own requirements to do so because few providers are willing to unbundle their services and access to alternative forms of interment such as eco or natural burials is limited.

29In this Issues Paper we examine the strengths and weaknesses of the current law and practice and put forward our preliminary proposals for reform.

14Burial and Cremation Act 1964, s 46E.
15Section 6.
16See ch 15.
17See ch 3 at [3.10]–[3.11].
18Religious groups may be permitted to establish burial grounds for their members on private land (the term “burial ground” is used to distinguish these religious burial places from public cemeteries).