Outdated burial, cremation and funeral laws one step closer to being interred – implications for all

Tuesday 8 July 2014

Authors: Ian Gault and Rebecca Rose

Results of pub​​lic submissions on the Law Commission’s 2013 Issues Paper regarding the adequacy and efficiency of our current funeral, burial and cremation laws and the principles that ought to underpin future laws are now available. In large part, public submitters have supported the major reforms suggested by the Law Commission. Consequently, it seems that New Zealand is now one step closer to a new Act that:

  • opens up the burial and cremation sectors to private providers and encourages greater competition;
  • gives better consumer protection;
  • strengthens regulatory requirements for those providing commercial funeral services to the public; and
  • introduces a new regime that clarifies who has authority to make decisions about a deceased person when serious disputes arise within families.

 

Why the need for reform?

New Zealand’s key burial and cremation laws have mostly remained unchanged since 1882. But New Zealanders’ attitudes to bereavement and death have evolved substantially since then. Maori tikanga and New Zealand’s growing ethnic diversity have both had important impacts in this area. Death-related public health risks no longer present the dangers they once did. Yet the rules imposed by those who manage and control New Zealand’s crematoria and public cemeteries mean that alternatives to traditional burial/cremation practices are limited. As demonstrated by the Takamore “body-snatching” litigation (which spanned five years and culminated in a Supreme Court decision),1 there is a very real need for clarity and certainty in the law about the rights and obligations in relation to a deceased person. A timely and accessible disputes regime for resolving serious conflicts also appears essential.

Submitters’ key views at a glance

The Law Commission received over 200 submissions from a broad cross-section of society on its 2013 Issues Paper. Generally, public submitters support the Law Commission’s preliminary conclusions. Key themes include:

Cemeteries & crematoria

  • majority support (by 67% of submitters) for opening up the cemetery and crematorium sectors to private providers. A substantial number (approximately 20%) of submitters, however, wish to see adequate safeguards regarding access, operation and maintenance in perpetuity put in place if the sectors are opened up. (Currently, local government has responsibility for and is the main provider of cemeteries. Around 48% of local authorities opposed opening up the cemetery sector, mainly for reasons relating to perceived costs to ratepayers);
  • notable support for natural/eco-burials – with some submitters considering that local authorities should be obliged to provide eco-burial options;
  • majority support (by 55% of submitters) for allowing burial on private land in certain circumstances;
  • majority support (by 69% of submitters) for requiring local authorities to provide separate burial areas in public cemeteries for groups with specific religious or burial requirements;
  • strong support (by 57% and 48% of submitters respectively) for introduction of minimum maintenance standards for cemeteries and better legal protections for historic cemeteries and grave sites;
  • overwhelming support (by 94% of those answering the question, comprising 64% of submitters) for crematoria operators to be licensed;
  • strong support (by 46% of submitters) for stronger regulation of crematoria and the handling of human ashes by crematoria;
  • some support for development of National Environmental Standards for crematoria and introduction of a requirement that all resource consent applications for new crematoria be publicly notified so that any potential adverse effects on amenity values can be taken into account;
  • mixed views on the sufficiency of cremation services currently available;

 

Funeral services

  • overwhelming support (by 84% of submitters) for price disclosure for components of funeral services;
  • strong support for funeral service providers to disclose qualifications, relevant industry memberships and the availability of any complaints procedure;

 

Dispute resolution

  • overwhelming support (by 94% of those answering the question, comprising 75% of submitters) for legislative clarity about the process for resolving serious burial disputes. (Currently, no legislative guidance exists. Rather, all relevant rules and principles are contained in (often old) court decisions);
  • majority support (by 52% of submitters) for giving the Family Court responsibility for dealing with burial and cremation disputes. (Currently, the relevant forum is the High Court); and
  • mixed views on giving the Maori Land Court jurisdiction to decide serious disputes involving Maori customary law where all parties agree on the forum.

 

What’s next?

The Law Commission expects to produce a final Report and draft Bill by the end of this year. The Report will include recommendations regarding the policy issues addressed in both the 2013 Issues Paper and a 2011 Issues Paper on New Zealand’s certification process for death and cremation. The Report will also include recommendations about which government department ought to administer the new Act.

Given submitters’ strong support of the Law Commission’s preliminary conclusions, legislative change seems inevitable.

If passed, the new Act will have wide-ranging implications for all. Individuals and families will undoubtedly benefit from greater consumer protection laws and wider choice. Local councils, funeral and health sector participants, and entities looking to enter death-related services industries will likely see increased regulation and competition initiatives.


1 Takamore v Clarke [2012] NZSC 116.


Disclaimer

This publication is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.

For more information
  • Ian Gault

    Partner and Deputy Chair Auckland
  • Rebecca Rose

    Senior Associate Auckland
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