Chapter 21
A statutory framework for burial decisions

21.1We are satisfied that there is a strong case for a new statutory framework. The common law is ill suited to the task of delivering certainty and clarity to people making burial decisions. People are understandably reluctant to litigate questions about burial decisions in court, and common law judges have tended to be reticent about developing the law in this area.432 The common law is not generally well equipped to deal with matters that have far-reaching social implications.433 As a result, the law governing burial decisions reflects 19th century conditions, a point expressed by many submitters on Issues Paper 34.
21.2Legislation, in contrast, can create new remedies and new forms of enforcement and dispute resolution mechanisms. Democratic processes allow the public to have a say in developing legislation.434 Of 66 submitters who answered our question of whether the common law should be replaced by legislation, 64 were in favour. The main reason given in support was that it would make it clear to the public and those working in the sector what the law is.

21.3However, a number of those who supported statutory reform did so on the condition that the statute properly reflects a range of values. We discuss this further in the following paragraphs.

432 Conway and Stannard, above n 416, at 862–863.
433 JF Burrows and RI Carter Statute Law in New Zealand (4th ed, LexisNexis, Wellington, 2009) at 531.
434 At 532.