Scope of review
1.1Every year there are approximately 30,000 deaths in New Zealand. Each of those deaths is a profound event in the lives of the surviving family. In the midst of their grief, they usually engage a funeral director and make decisions about funeral preparation and whether the body will be cremated or buried. How those decisions are made is unique to each family—determined in accordance with family dynamics and cultural, religious and ethnic background.
1.2At another level, each of those deaths invokes the services of an array of private and public individuals, including the doctors and coroners who determine the cause of death; the funeral directors and embalmers who prepare the body for the funeral; the celebrants and others who perform services or provide materials for the funeral service; and the cremator operators and cemetery managers who dispose of the body.
1.3Some of these post-death activities are controlled by the law, in particular, by the Burial and Cremation Act 1964 (the Act). In 2010, the government asked us to undertake a comprehensive first principles review of that law. The expectation was that the review would examine the basic precepts of the legislation to determine whether it was fit for purpose in the modern world and into the future and to make recommendations where it was found wanting.
1.4Most of the Act concerns only cemeteries, following on from the Cemeteries Management Act 1877 and the Cemeteries Acts of 1882 and 1908. The Act is administered by the Ministry of Health. That reflects the now outdated idea that there are significant health concerns with the burial of bodies. That Act prescribes approved places to bury bodies, including local authority cemeteries, trustee cemeteries, denominational burial grounds and some special burial places. The Act has a few provisions covering cremation, but most cremation regulation is found in the Cremation Regulations 1973, made under the Act. In 2009, provisions relating to the certification of the cause of death were transferred into this Act from the Birth, Deaths, Marriages, and Relationships Registration Act 1995.
1.5The terms of reference of this review are as follows:
To undertake a first principles review of the Act identifying the key public interest questions relevant to the handling and burial or cremation of the dead. 2.
To undertake a process of targeted and public consultation to determine the principles, policies and objectives which should drive legislation regulating the handling and burial of the dead in contemporary New Zealand. 3.
To determine whether the public interest requires the retention of primary legislation or whether the control and regulation of burials and cremations could be devolved to local authorities. 4.
To improve the efficiency and effectiveness of the legislation by eliminating the current overlap and duplication between the Act and related legislation and regulations.
To deal explicitly with a number of issues, including:
- whether the Act in its current form is meeting public expectations and needs with respect to the handling and burial or cremation of the dead with specific reference to:
- The care and custody of the body after death;
- The provision of culturally appropriate options for burial or cremation;
- The responsiveness to individual or group requirements that fall outside the ambit of the current Act (e.g. eco or green burials);
- The suitability of religious affiliation as the sole criteria for the establishment of burial grounds (Part 4 s 31); and
- The responsiveness of the Act and associated territorial bylaws to the beliefs, customs and practices of Māori;
- to examine the interface between the Act, the Coroners Act 2006, the Health Act 1956, the Local Government Act 2002 and the Resource Management Act 1991 to identify redundant and or duplicate provisions;
- identify any residual public health provisions in the Act and make recommendations as to the most appropriate legal vehicle for these provisions;
- consider whether the current system of self-regulation of funeral directors should be continued or an alternative system of regulation be instituted;
- consider whether nationally consistent regulations are required to regulate the dispersal of human and animal ashes to avoid cultural offence and nuisance; and
- examine the adequacy and efficiency of the current laws and regulations relating to death certification and notification and in particular whether there should be a statutory provision for certifying life is extinct.
To prepare an issues paper, undertake targeted and public consultation on the issues and call for public submissions. 7.
To prepare a final report and draft Bill including recommendations as to the most appropriate government department to administer the new statute.