18.8Our first proposal is for an enhanced registration process with clear prerequisite conditions to registration and very limited discretion required of the registration authority. The registration system should be administered nationally rather than regionally as it is currently. It should apply to a slightly wider group of people than just funeral directors (to better capture people who may pose a risk of inappropriate or disrespectful treatment of a deceased body) but should not apply to people who provide funeral services under the supervision of a registered person.
18.9While currently there are no prerequisites to registration, we recommend that a new statute introduces a simple system of prerequisite conditions to ensure that unsuitable people are not operating in the industry. The legislative conditions to operating in this industry should be at the lower end of options for occupational regulation, namely the:
18.10In addition to being prerequisite conditions to registration, if either of the first two conditions cease to apply after registration, the registration authority should have the power to cancel the registration. There should be a natural justice process before any cancellation under which notice of the reasons for the proposed cancellation are provided to the registered person together with an adequate opportunity to make submissions. There should be a right to appeal any registration decision to the District Court. We suggest that rights of appeal from the District Court be on questions of law only.
18.11We discuss each of the prerequisite conditions in turn.
18.12We have considered the types of offences that should prevent a person from being registered. These offences should be specified or described in the new statute. We have kept in mind the objective of ensuring that people entering the funeral service industry are those who have integrity and are honest, trustworthy, non-violent and not inclined to take advantage of vulnerable people.
18.13We have considered the variety of ways in which disqualifying convictions are dealt with in other statutory registration and licensing regimes, for example:
18.15Keeping in mind that only relatively low-level intervention is justified in the funeral industry, we consider both that the list of relevant offences should be tightly confined and there should not be an overriding discretion. Such discretion is more appropriate for a full licensing regime.
18.16The specific relevant offences should be:
18.17A conviction under the Crimes Act for misconduct in respect of human remains is an offence so inherently tied to the provision of funeral services that we consider there should be no time limit on previous offending. However, a time limit is appropriate in respect of the offences involving dishonesty and under the Fair Trading Act because those are offences that may have occurred in very different circumstances and may be less relevant when significant time has passed. We consider that 10 years would be an appropriate timeframe for those convictions.
18.18In addition, there is a need to capture other types of serious offending, particularly violent offending. This is best achieved by reference to the penalty that was imposed on the applicant. The harsher the penalty imposed, the longer the timeframe in which that offending can be taken to still pose a risk in the industry. Consequently, we propose that disqualifying convictions should also include:
18.19The provisions defining disqualifying convictions should be subject to the Criminal Records (Clean Slate) Act 2004 (the Clean Slate Act). Under that legislation, a person does not have to reveal their convictions (and government departments must not reveal convictions) if the person:
18.20This legislation means that there will be a small number of individuals who fit these criteria but who will have older convictions that fall within the offences that would prevent registration. The Clean Slate Act is a policy choice made by Parliament to give those individuals opportunities that would not be possible when older convictions must be revealed. We consider that, for the most part, the operation of that Act would not substantially affect the risk of unsuitable people operating in the funeral industry.
18.22We consider that all these conditions provide an objective assessment that the person lacks competence for the time being in the management of money or property. However, we recommend below that an unregistered person may provide funeral services under the supervision of a registered person. In theory, that would apply equally to a person who has one of the disqualifying conditions.
18.23We also suggest that two further disqualifying conditions should be added on the basis that they demonstrate objective evidence that the person lacks the requisite level of competence for this role:
18.24The third prerequisite for registration should be that the applicant must demonstrate the requisite level of knowledge of:
18.25This knowledge could be demonstrated by holding a relevant qualification prescribed by regulations made under the statute. As noted previously, qualifications are currently available in both funeral directing and embalming. Currently, there is no formal qualification specifically for operating a cremator, although NZQA-accredited training units in cremator operation are in development. When the cremation training units become available, they could be included in regulations.
18.26However, we have some concern that, because the current qualifications for funeral directing and embalming require applicants to be employed in the industry already, making those qualifications compulsory for registration will give some control to existing industry participants over new participants in the industry. That is an undesirable situation because it may encourage anti-competitive behaviour and stymie innovation or alternative methods of providing funeral services.
18.27The purpose of the qualification prerequisite condition is to ensure that industry participants have the requisite levels of knowledge (or are operating under the supervision of someone with that knowledge). One alternative option to demonstrate that knowledge would be to sit an examination (similar to a person passing the theory test before being permitted to learn to drive a car). This option would enable people to enter the industry without first having to be employed by an existing participant.
18.28We have considered who would be best placed to set this examination. The existing training provider would have the expertise but also a conflict of interest. Alternatively, the registration authority could administer the examination, but that would require some expenditure and a different set of skills than is required merely for the registration process. It may be that the most effective solution is for the examination to be provided by the existing training provider under the registration authority’s supervision to ensure that there are adequate protections against the conflict of interest.
18.29We also consider that the statute should provide a grandparent provision to recognise those people who have been working as funeral service providers for a long time and who have plenty of experience but no formal qualifications. We have been told that there are many older, long-serving funeral service providers who have learned their vocation on the job and operate to a fully acceptable standard. The statute should provide that people who have worked as funeral service providers for five years (full-time equivalent) are deemed to be qualified for the purposes of registration. Our consultation with industry experts suggests that five years would be sufficient to ensure an adequate level of experience to mitigate risk and operate independently.
18.30At present, territorial local authorities have the responsibility to register funeral directors. We have considered who the new registration authority should be, given the new purpose of registration. We have considered whether the function should remain with local authorities or whether it should become a function of central government. While local authorities are better placed to determine whether their local service providers are meeting their obligations, some told us they had concerns that this function went beyond their core functions.
18.31We have concluded that the registration of funeral service providers should be the function of central government. A key reason is that this would enable a central register of funeral directors that could then be easily checked by any person with a concern about a particular provider of funeral services. It would also enable the administration of a nationally consistent examination as an alternative to the qualification prerequisite for registration as we outline above. If the registers were localised, either funeral directors would need to register separately for each area they operated in or a person would need to check with many local authorities to determine whether the person was registered. Neither option is satisfactory.
18.32Other advantages of central government operating the registry include:
18.33The registration authority should be under a statutory obligation to maintain and update a register of all funeral service providers who apply for and are granted registration as a provider of funeral services in a particular specialty. The registration body should also have an obligation to issue certificates upon registration as evidence of the provider’s registration.
18.34We envisage that the registration function should be carried out by the Department of Internal Affairs. This would be part of the Department’s responsibilities in their overall administration of the new statute.
18.38We consider that the registration requirement should capture the services that involve the possibility of contact with the deceased body. It should include funeral directing, embalming, burial (cemeteries) and cremation (or alternative method of disposal). It should also capture those people who are in the business of facilitating or arranging for others to carry out funeral services or the disposal of the deceased body.
18.39The definition of funeral services should not include the mere provision of accessories or equipment required in the provision of funeral services (such as caskets or coffins, urns, embalming materials, cremation units, headstones or grave markers, memorabilia, flowers or catering), nor should it include funeral celebrants, ministers of religion or anyone whose role was limited to planning and conducting a funeral service.
18.40We have specifically considered the position of employees within funeral service businesses. We consider that excluding people who are directly supervised by a registered person from the registration requirement recognises that the funeral industry operates on the basis that new employees will work under the supervision of experienced people for a certain period of time until they gain the necessary experience or qualifications themselves. We consider that the risks presented by an unregistered employee are properly mitigated if that person is proactively supervised by a registered person.
18.41The effect of this exception is that people can enter the funeral services industry and learn the profession without first having to be registered. New entrants will be able to learn under supervision. They will then be able to gain professional qualifications and become registered themselves.
18.42In theory, it should be possible for the manager of a funeral service business to not be registered so long as the manager employs a registered person who supervises all unregistered people providing funeral services, including the unregistered manager.
18.43The new statute should require registration to be renewed periodically. Since the qualification prerequisite is already established, re-registration would simply require the applicant to confirm that he or she remains eligible to be registered. That would mean simply confirming that they have not committed any offences in the intervening period nor have become otherwise disqualified from being registered. Our preference is for the renewal period to be every three years. If re-registration was more frequent than this, it would become a purely administrative exercise as it is unlikely that the applicant’s circumstances would have changed significantly over the course of the year, whereas his or her circumstances could well have changed over a two or three-year period.
18.44The statute should also provide a transition provision that recognises registration under the existing legislation for five years to enable the new system to be established.
18.45We think that the potential for a conviction and fine would provide the appropriate level of incentive to comply with the requirement to be registered, and so the new statute should provide an offence of carrying on the business of providing funeral services without being registered or without acting under the direct supervision of a registered person. This should be a strict liability offence—that is, the prosecution does not have to prove a mens rea element of the offence (for example, that the person knowingly, recklessly or intentionally did the action). However, the accused person has a defence if he or she can show total absence of fault on the balance of probabilities.
18.47A defendant should be able to avoid conviction for the offence if he or she can prove that providing the funeral services without being registered (and without supervision by a registered person) was due to the act or omission of another person or some other cause outside the defendant’s control and that the defendant took all reasonable steps to avoid the commission of the offence. These matters of defence are all things that are particularly within the knowledge of the defendant. For example, an unregistered employee of a funeral service business may be able to prove that the person supervising him or her is normally registered, but that person’s failure to renew the registration is not something that the employee could or should have known.
18.48The statute should also provide other offences to support the registration system, namely:
18.49Finally, the statute should provide the registration authority powers to investigate and prosecute any breach of the registration requirements, including fraudulent declarations and practising without registration.