On this project, the Law Commission undertook a first principles review of the Burial and Cremation Act 1964. The Act’s primary purpose is to ensure provision is made for the burial of the dead in a controlled and respectful manner which meets public expectations. The Act also contains the legal provisions governing death certification. Apart from a number of small amendments, the Act is substantially unchanged since its enactment nearly half a century ago.
The Commission was given the following terms of reference for the review of the Burial and Cremation Act 1964:
- To undertake a first principles review of the Burial and Cremation Act 1964 identifying the key public interest questions relevant to the handling and burial or cremation of the dead.
- To undertake a process of targeted and public consultation to determine the principles, policies and objectives which should drive legislation regulating the handling and burial of the dead in contemporary New Zealand.
- To determine whether the public interest requires the retention of primary legislation or whether the control and regulation of burials and cremations could be devolved to local authorities.
- To improve the efficiency and effectiveness of the legislation by eliminating the current overlap and duplication between the Act and related legislation and regulations.
- To deal explicitly with a number of issues, including:
- whether the BAC in its current form is meeting public expectations and needs with respect to the handling and burial or cremation of the dead with specific reference to:
- the care and custody of the body after death
- the provision of culturally appropriate options for burial or cremation
- the responsiveness to individual or group requirements that fall outside the ambit of the current Act (e.g. eco or green burials);
- the suitability of religious affiliation as the sole criteria for the establishment of burial grounds (Part 4 s 31); and
- the responsiveness of the Act and associated territorial bylaws to the beliefs, customs and practices of Maori.
- to examine the interface between the Burial and Cremation Act, the Coroners Act 2006, the Health Act 1956, the Local Government Act 2002 and the Resource Management Act 1991 to identify redundant and or duplicate provisions
- identify any residual public health provisions in the BAC and make recommendations as to the most appropriate legal vehicle for these provisions
- consider whether the current system of self- regulation of funeral directors should be continued or an alternative system of regulation be instituted
- To prepare an issues paper, undertake targeted and public consultation on the issues and call for public submissions.
- To prepare a final report and draft Bill including recommendations as to the most appropriate government department to administer the new Act.