Contents

Summary and questions for public consultation

Purpose and scope of the review

1Each year approximately 30,000 New Zealanders die and hundreds of thousands of us are affected by the loss of a family member, friend or colleague. While many of us are uncomfortable thinking about death, we must all confront it at some point.

2Until faced with the task of arranging a burial or cremation, few of us are likely to be aware of the laws and regulations that control such matters as where, when, and how burials and cremations may take place; the legal responsibilities of those making decisions and arrangements on behalf of the deceased; and the responsibilities of those who establish and manage funeral homes, cemeteries and crematoria.

3The most important of these laws is the Burial and Cremation Act 1964 (the Act) and its associated regulations.5 The statute’s primary purpose is to ensure that every community has access to places for burial and cremation. Cemeteries are an essential public service and in New Zealand local authorities (councils) have the legal responsibility for providing them. Some local authorities also provide cremation services but they are not legally obliged to do so. In some parts of the country cremation services are provided entirely by the private sector, often in conjunction with a funeral home.
4But the functions funeral homes, crematoria and cemeteries perform in society go well beyond the purely pragmatic. Our dignity as human beings is not extinguished the moment we die. This principle underpins how we mourn, care for and memorialise our dead. It is explicitly recognised in our criminal law, which makes it an offence for anyone to “offer an indignity” or “improperly or indecently interfere” with any dead human body. It is also an offence for anyone to neglect to perform any duty they are required to undertake with respect to the burial or cremation of a deceased person.6
5As a society we have a strong interest in being able to care for and mourn our dead in a manner consistent with our culture and beliefs. How we approach death can be a potent expression of our ethnic and cultural identity because “the ways that people bid farewell to and inter their dead are a well-worn path for asserting what is held dear to the departed and their nearest and dearest.”7
6Even after burial the law continues to play a role. For example, there is a legal presumption that once buried, a body should not be disturbed. Many also believe that land used for human burial has a special status, and that the law ought to ensure that the spiritual and heritage values attached to such places are protected.8
7Despite our fast-paced and mobile lives the public response to events such as the desecration of graves in Auckland’s historic Symonds Street Cemetery, the clearance of decorations from Waikumete Cemetery’s “stillborn sanctuary” and the sale of old burial grounds associated with closed churches in various parts of the country, suggests many New Zealanders continue to care strongly about these matters.9 The very public and long-running dispute sparked by the sudden death in 2008 of an ordinary citizen, James Takamore, also shows the depth of feeling which can arise when families cannot agree on a loved one’s final resting place.10

8However, New Zealand is now a very different place from the country in which the Act came into force nearly half a century ago. Like all aspects of culture, our approach to death is constantly evolving, together with our attitudes towards the human body, disease, mortality, religion and family.

9This review provides a timely opportunity for the public to reassess the principles and values that should direct this sensitive area of our law. The publication of this Issues Paper is an important milestone in the process and gives all New Zealanders the opportunity to have input into shaping the laws which will govern these matters for future generations.

Our approach

10 This is the second Issues Paper to be published as part of the Law Commission’s review of burial law. The first, published in May 2011, dealt with the legal system for certifying deaths and authorising cremations.11 This second Issues Paper brings together over two years of research and preliminary consultation with the Ministry of Health (which administers the Act), local authorities, the cemetery and funeral sector, experts in Māori customary law and representatives of various ethnic communities.12 This lengthy period of research reflects the broad scope of our terms of reference and the fact that this is a “first principles” review.

11As well as assessing whether the Act remains fit for purpose, our terms of reference also ask us to address a number of issues that are not currently provided for in the statute. These include asking what role, if any, our burial statute should play in helping citizens to resolve burial disagreements, and assessing whether there is a case for regulating funeral services.

12Alongside these big policy questions we assess how the primary legislation interfaces with other key statutes,13 and the respective roles central and local government and the private sector should play in the provision and management of cemeteries and crematoria.

13It is unlikely that the general public will want to comment on all the questions we pose about these fine-grained administrative and operational reforms. However we expect significant public interest in many of the big picture questions arising in this sensitive area of law.

14The purpose of this Issues Paper is to provide the public with sufficient information about the current law and how it is operating to help them respond to these questions. To make the Paper more accessible, we have divided it into four parts: Part 1 comprises two introductory chapters: the first provides an overview of the whole Paper, the principles underpinning our approach and the preliminary conclusions we have reached. The second chapter explains the important social and cultural context for the review. Part 2 focuses on the Burial and Cremation Act and the policy issues that arise about the provision of places for burial and cremation. Part 3 deals with the funeral sector and the services and facilities needed to support the recently bereaved. Part 4 deals with decision-making and disagreements at the time of death. Each of these parts can be downloaded separately from our website at www.lawcom.govt.nz.

15Below we summarise the main issues and set out the key questions we would like the public to consider when giving feedback on the wide-ranging reforms we propose.

Key reform optionsTop

16As a result of our research and preliminary consultation we are putting forward a number of significant potential reforms for debate. Among the most far reaching is to bring cemetery land management under the Resource Management framework, whereby we propose to:

17Our reform options in relation to funeral service providers and crematoria include:

18In relation to decision making and disagreements in the context of burials we seek public feedback on the merits of:

19Throughout the summary we provide references to the relevant chapters of the Issues Paper in which we explain the rationales behind these proposals and seek more detailed feedback on the policy options. We begin with a very brief explanation of the legal framework within which bereavement and burial and cremation services are currently provided in New Zealand.

5These include the Cremation Regulations 1973 and the Burial and Cremation (Removal of Monuments and Tablets) Regulations 1967. There are also the Health (Burial) Regulations 1946 made under the Health Act 1920 to regulate mortuaries.
6Crimes Act 1961, s 150.
7Ruth McManus Death in a Global Age (Palgrave Macmillan, Basingstoke, Hampshire, 2013) at 122.
8Māori regard burial grounds as wāhi tapu or sacred places. The protection of wāhi tapu is recognised under New Zealand law through the Historic Places Act 1993 and the Resource Management Act 1991.
9Amy Maas “Crude desecration of graves punished” (27 February 2013) Stuff <www.stuff.co.nz>. Michael Morrah “Auckland council apologises for destroying graves” (4 February 2013) 3 News <www.3news.co.nz>.
10See ch 15 for full discussion of Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 and related issues.
11Law Commission Final Words: Death and Cremation Certification in New Zealand (NZLC IP23, 2011).
12In approaching the many religious and cultural issues that can arise at the time of death we have been grateful for the knowledge and insights of representatives of a number of different ethnic groups and in particular the guidance and advice of the Law Commission’s Māori Liaison Committee. We have also drawn extensively on the arguments and reasoning of the New Zealand courts in determining Takamore v Clarke.
13These include the Resource Management Act 1991, the Local Government Act 2002, the Reserves Act 1977, the Historic Places Act 1993, the Health Act 1956, and the Coroners Act 2006.