The determination of death, and the way in which our society responds to the features attendant on, it necessarily falls to the lot of both medicine and the law. How we respond as people is no easy matter. In 1974, the American anthropologist Ernest Becker was awarded the Pulitzer Prize for his ground-breaking book The Denial of Death, in which he asserted that the fear of death “haunts the human animal like nothing else”. The book promoted a still thriving subfield of social psychology as to how we think and what we do about the problems associated with death.
In New Zealand, unsurprisingly given our social history, settlers brought with them essentially English traditions and thinking. Māori had and have their own tikanga. We have followed largely the traditions of those who were here and those who have come here, but the circle of those who have come here has steadily widened, and our ethnic makeup is now distinctly multi-cultural.
Mortality presents many practical challenges. These have been dealt with in largely piecemeal fashion as the colony evolved into a Dominion and then into fully independent nationhood. Our law relating to certification of death and disposal of bodies is old, out of date and fractured. It has been in need of fundamental revision and law reform for many years now. Most but not all the law is in a 50-year-old Act – the Burial and Cremation Act 1964 – which itself rests on old antecedents.
The area has been in need of true first principles law reform. That is the task the Law Commission was asked to assume in 2010.
This has been a demanding “true” law reform project. We have had to grapple with changing conceptions of when somebody can be said to be dead for legal purposes, outmoded systems for recording the event that has occurred, changing methods of dealing with bodies (such as the sharp rise in cremation), increasing demand for alternatives to traditional funeral arrangements such as eco-funerals and DIY funerals, problems with burial grounds and the incidents attaching to them around the country and the rightful claims of Māori and other ethnicities to have their cultural and spiritual concerns recognised.
Our legislation has also become misaligned with important management and infrastructure regimes such as the Resource Management Act 1991 and the Local Government Act 2002 and even the more fundamental requirements of the New Zealand Bill of Rights Act 1990.
In a first principles review such as this is, our concern must be for the citizens of New Zealand, who should be placed squarely at the forefront of any reform legislation. The Commission has endeavoured to advance a regime not just for contemporary New Zealand but also for a respectable period into the future. This is not a law reform topic that is likely to be revisited in the near future!
I express sincere thanks on behalf of the Commission to the many people from many parts of New Zealand, in many walks of life, who contributed their thoughts to this difficult but important task. They have helped us to suggest a new legal regime that, in a sensible feet-on-the-ground New Zealand kind of way, faces up to the reality of mortality and also the importance of the recognition of human dignity and human decency.
Sir Grant Hammond