Contents

Chapter 18
Recommendations for reform

Enhancing the registration system

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.

Prerequisite conditions to registration

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.

Absence of certain criminal convictions

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:

18.14In addition, some statutes provide an overriding discretion in the registration authority to decide that a particular conviction does not present an undue risk in the industry.364 Others provide no discretion.365 An analysis of these regimes shows that regimes with a broad overriding discretion tend to also have broader descriptions of relevant convictions. This method tends to be used when there is a broader range of relevant convictions. Specific lists of relevant offences with no discretion in the registration authority are methods used when there is a very confined set of relevant offences.

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.

Absence of other disqualifying conditions

18.21The second prerequisite for registration should be the absence of other disqualifying conditions. These are matters that would automatically make a person unfit to provide funeral services. In determining these disqualifying conditions, we have considered other analogous statutory licensing and registration regimes. Across those regimes, we have found a fairly consistent set of circumstances that make a person ineligible for or disqualified from registration that we think is also applicable to the funeral industry.367 Thus, a person could not be registered if they:

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:

Qualifications

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.

The registration authorityTop

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.

Who must be registered?Top

18.35Currently, every person who carries on the business of funeral director must be registered.368 This has been interpreted by most local authorities to mean that the business itself or the owners of the business must be registered rather than the individuals employed by that business. We propose that, in order to ensure unsuitable people are not practising in the industry, the scope of the registration requirement should capture some employees also. Specifically, as we discuss in more detail below, the statute should require that every person carrying on the business of providing funeral services must be registered unless they are directly supervised by a registered person when providing the service.
18.36The qualifying words “carrying on the business of” is intended to ensure that the requirement does not capture people who do these services voluntarily or who prepare their own deceased family members for the funeral.369 We recognise that, in some situations, a person may volunteer to prepare a body for the funeral and receive a “koha” in return. Whether or not this is captured within the requirement will depend upon the extent to which that person could be said to be in the business of providing funeral services.

The scope of “funeral services”

18.37Currently, the registration requirement captures funeral services that fall within the phrase “burial and matters incidental thereto”.370 This phrase is vague and will need to be defined more clearly in the proposed new statute to ensure that all the areas of practice are included where there is a risk of harm.

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.

Registration of employees

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.

Renewal of registrationTop

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.

Offence of not being registeredTop

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.

18.46The Legislation Advisory Committee Guidelines state that a strict liability offence may be appropriate if the offence involves protecting the public from risk-creating activities; the threat of criminal liability supplies a motive for people in the relevant occupations to take precautions; and the defendant is best placed to establish absence of fault because the relevant matters are primarily within the defendant’s knowledge.371 We consider that the requirement for people providing funeral services to be registered fits these conditions. The purpose of the requirement is to protect the public from risky practices, and funeral service providers are likely to be motivated by the threat of criminal liability.

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.

Recommendations

R81 The statute should require that no person may carry on the business of providing funeral services unless that person is registered or is acting under the direct supervision of a registered person.

R82 Registration should be a function of central government.

R83 An applicant for registration must be registered if they pay the prescribed fee and demonstrate:
  • the absence of convictions for offences described at R84;
  • the absence of disqualifying conditions described at R85; and
  • that the person holds the qualification required by regulations made under the statute to be held for the relevant type of funeral service or passes an approved examination.
R84 The criminal convictions that should preclude a person from registration are:
  • a conviction for an offence under the Burial and Cremation Act 1964 or the new statute;
  • a conviction for an offence against section 150 of the Crimes Act 1961;
  • a conviction for dishonesty (as defined in the Crimes Act 1961) within the previous 10 years;
  • a conviction for an offence under Part 1 (relating to unfair conduct) or subparts 1 or 2 of Part 4 (relating to layby sales and uninvited direct sales) of the Fair Trading Act 1986 within the previous 10 years;
  • a conviction resulting in the imposition of a term of imprisonment of three years or more; or
  • a conviction within the previous five years resulting in the imposition of a term of imprisonment of six months or more.
R85 The conditions that would disqualify a person from registration should be that the person:
  • is under 18 years of age;
  • is an undischarged bankrupt;
  • has already had their licence cancelled under the Burial and Cremation Act 1964 or the new statute;
  • has been prohibited from being a director, promoter or manager of a company;
  • is subject to a property order under the Protection of Personal and Property Rights Act 1988;
  • is a person in respect of whom a personal order has been made under the Protection of Personal and Property Rights Act 1988; or
  • is subject to a compulsory treatment order under the Mental Health (Compulsory Assessment and Treatment) Act 1992.
R86 The statute should provide that a person is deemed to hold the relevant qualification if that person has been providing the relevant funeral service for a period of five years prior to the application for registration.

R87 Registration should be renewed every three years.

R88 The registration authority should have the power to investigate and prosecute any breach of the registration requirements and to cancel the registration of a person if it is satisfied that one of the conditions for registration ceases to exist.

R89 A person may appeal any decision of the registration authority to the District Court. Any appeal from such a decision of the District Court should be on questions of law only.

R90 The statute should provide that carrying on business as a funeral director in breach of the requirement in R81 is an offence.
360 Auctioneers Act 2013, s 6.
361 See, for example, the assessment of managers under the provisions for the registration of private schools in the Education Act 1989, ss 2, 35A, 35C and 35G and the Immigration Advisers Licensing Act 2007, s 16.
362 For example, the Immigration Advisers Licensing Act, s 16, includes offences resulting in a term of imprisonment.
363 Under the Health Practitioners Competence Assurance Act 2003, s 16, a person must not be registered as a health practitioner if he or she has been convicted of an offence punishable by imprisonment for a term of three months or longer and does not satisfy the registering authority that the offence does not reflect adversely on his or her fitness to practise. A similar provision is found in the Veterinarians Act 2005, s 9.
364 See, for example, the broad discretion in the registration of lawyers in Lawyers and Conveyancers Act 2006, ss 49 and 55(1)(c).
365 See Real Estate Agents Act 2008, s 37 and Auctioneers Act, s 6.
366 Section 2.
367 Real Estate Agents Act, s 37; Auctioneers Act, s 6; Motor Vehicle Sales Act 2003, s 24, and Immigration Advisers Licensing Act, s 16. Other statutory licensing and registration schemes had the same disqualifying conditions.
368 Health (Burial) Regulations, reg 4.
369 Although people who voluntarily perform funeral services will still be subject to the general duties on every person in respect of the burial or cremation of bodies. We discussed these duties in Chapter 15.
370 Health (Burial) Regulations, reg 3. See the meaning of “funeral director”.
371 Legislation Advisory Committee Legislation Advisory Committee Guidelines (Ministry of Justice, 2001) at [12.2.3].