Chapter 11
Problems with the current legislative scheme for burial and cremation

Lack of clarity and detail in the statute

11.21There are a number of examples of areas of the Act that lack detail and clarity and that need updating to reflect the principles of good legislation.

Statutory powers of decision

11.22For instance, the Act lacks criteria to guide the exercise of certain statutory powers of decision and, in particular, the Minister’s powers:

11.23This lack of statutory detail is compensated somewhat by Ministry policies and publicly accessible guidance on how the Ministry of Health and its officers will exercise these powers. However, unlike legislation, these departmental policies are not necessarily binding, they are not as accessible to the public and they are not developed in a democratic manner, as legislation is.

11.24The Legislation Advisory Committee Guidelines on process and content of legislation state that good legislation should set out the matters that should, may or must be considered when exercising a statutory power, in what circumstances it can be exercised and for what purposes.184 At present, these matters are included in Ministry guidance, not legislation.185

11.25The same lack of detail is evident in respect of the statutory powers of those who have control and management of cemeteries. A local authority or trustee can determine whether or not it will provide a separate area within its cemetery for the burial of adherents of a particular religious denomination. However, the Act does not establish guiding criteria or principles for how that decision should be made, such as whether there is significant community demand and whether there is otherwise insufficient provision for that type of burial in the district. Only some local authorities have policies, rules or bylaws providing for this, and few trustee cemeteries, particularly those run on a voluntary basis, could be expected to.

Rights and duties in respect of monuments and burial plotsTop

11.26Another area where the Act departs from the principles of good legislation is in the provisions on monuments. The Act provides that the local authority or trustees may grant or refuse permission to erect a monument in a cemetery at its discretion.186 In exercising that discretion, the local authority or trustees must consider its general plan for ornamenting the cemetery in an appropriate manner and safety concerns, but it does not require cultural or religious beliefs to be taken into account.187

11.27On the other hand, the Act contains some very specific provisions about the powers and duties of a cemetery manager in respect of vaults, monuments and so on. These include:

11.28The Act provides that a local authority or trustee may enter into agreements to maintain the graves in a cemetery either in perpetuity or for specified periods.191 Where this is not done, the Act does not state who has basic duties of upkeep in respect of monuments on the burial plot—whether the person on the deed or their descendants or the local authority or trustee. Because the Act is somewhat unclear on this, practice varies. Twenty responses to our trustee survey said maintenance responsibilities fell on owners, 17 said trustees and 16 said both.

11.29The legal ambiguity over the burial plot also results in uncertainty as to who must consent to an application to disinter a body from a burial plot (or inter an additional body in a burial plot). Even if the applicant for disinterment or additional interment is noted on the interment deed, it may be necessary to check that the other family members are in agreement with the proposal. The Ministry’s process for granting a disinterment licence includes checking for family agreement as do the requirements imposed by several cemeteries themselves. However, this is simply good practice and is currently not required by the Act.

Reuse and sale of cemetery landTop

11.30There are also significant ambiguities and a lack of detail in the provisions concerning reuse and sale of cemetery land.

11.31The Act currently provides for cemeteries and burial grounds to be closed by the Minister of Health.192 This approach to places of burial, in which they can be definitively closed or opened, may be unnecessary. It may not reflect how cemeteries are used now or, in particular, how they may be used in the future. Certain parts of the cemetery may become full before other parts, and those parts may be put out of use while other parts of the cemetery continue in operation. It may not be desirable to completely discontinue burial in any cemetery—even if it is full, it may be possible to continue using it for burial, either by allowing interments in existing plots or allowing ash burials, which take up less room and can also be done in ash walls.193
11.32The closing of cemeteries may also lead to ambiguity. For instance, it has been asked in the past whether a closed cemetery is still a cemetery, subject to the Act, if all the bodies in it have been disinterred.194 The Act also provides for a cemetery or burial ground to be “cleared” (monuments removed and so on) but does not state what consequences flow from this, other than that “no further burials shall take place” there.195 It is unclear whether the land retains cemetery status.
11.33Where part of a cemetery is not required for the burial of bodies, it can be sold, but certain processes must be gone through so that piece of land is no longer cemetery land.196 These processes are cumbersome and difficult to use. In Chapter 12, we make proposals to simplify them.
184Legislation Advisory Committee Legislation Advisory Committee Guidelines (2014) at paragraph [8.3.4].
185Ministry of Health, above n 128.
186Burial and Cremation Act, s 9(b).
187Section 9(c).
188Section 9(e)(i).
189Section 9(g).
190Section 9(i).
191Section 9(f).
192Part 6.
193For instance, even in historical cemeteries, surface-based ash interments can still occur. In one historical, urban cemetery, the Council dig a shallow trench alongside a burial plot in which ashes of a descendant of a plot holder can be spread.
194The Ministry of Health received legal advice on this question when Mangere Cemetery was to be diverted to alternative use, and it was asked whether disinterring the bodies would mean the land was no longer a cemetery subject to the statutory restrictions in the Act.
195Burial and Cremation Act, s 45.
196Section 21(3)–(5).