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

Lack of recognition of local government reforms

Local Government Act 2002

11.34The Burial and Cremation Act does not reflect the passing of the Local Government Act 2002 (the LGA) or the principles underpinning the LGA. The LGA confers a general power of competence on local authorities, giving them full capacity to do acts or enter into transactions in order to fulfil the purpose of local government under the LGA.197 This contrasts with the Burial and Cremation Act, which includes very specific powers for local authorities.

11.35The Local Government Amendment Act 2012 changed the purpose of local government to include prioritising their activities and consulting with their communities to determine those priorities. Burial and cremation legislation could better reflect this philosophy by requiring local authorities to consult their communities about certain aspects of the provision of cemetery services, such as the level of maintenance of public cemeteries and the extent to which areas should be set aside for different groups.

11.36We have also considered whether there are functions in the Burial and Cremation Act that should no longer be exercised by central government. They might be better exercised either by the relevant local authority or by the person who has control and management of the cemetery. One of the reasons for this is because delegating control to local bodies can ensure that local concerns are taken into account.

Resource Management Act 1991Top

11.37We also note that the Burial and Cremation Act has not been updated to reflect the passing of the Resource Management Act 1991 and its resource consent framework. The only mention of the Resource Management Act is in the provisions dealing with the reopening of closed cemeteries and burial grounds. Ministry policy is to alert those who want to open a denominational burial ground or apply for burial in a special place of the need for resource consent, but the relevant provisions in the Burial and Cremation Act are otherwise silent.

197Local Government Act 2002, s 12.