Burial and cremation law

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:

1. 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.
2. 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.
3. 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.
4. To improve the efficiency and effectiveness of the legislation by eliminating the current overlap and duplication between the Act and related legislation and regulations.
5. 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.
   
   • identify any residual public health provisions in the BAC and make recommendations as to the most appropriate legal vehicle for these provisions
   • 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
   • consider whether the current system of self- regulation of funeral directors should be continued or an alternative system of regulation be instituted
6. To prepare an issues paper, undertake targeted and public consultation on the issues and call for public submissions.
7. To prepare a final report and draft Bill including recommendations as to the most appropriate government department to administer the new Act.

Final Words: Death and Cremation Certification in New Zealand (NZLC IP23, 2011)

The Commission's Issues Paper, Final Words: Death and Cremation Certification in New Zealand (NZLC IP23, 2011) looked at the strengths and weaknesses of the current systems of death and cremation certification, with a particular focus on how well the system identifies deaths which are reportable to the Coroner.

Before a body can be buried or cremated in New Zealand the person responsible for these final arrangements must first obtain either a doctor’s medical certificate outlining the cause of death or a coroner’s authorisation. This legal requirement serves two important public interests:

• It provides a safeguard against the disposal of bodies in circumstances where the death may have been preventable or may have arisen as a result of some wrongful or negligent act or omission.
• Where the death was natural, it provides vital public and private health information regarding the actual cause of death.

This initial Issues Paper formed a specialist part of the Commission’s first principles review of the Burial and Cremations Act 1964 and contained a number of specific questions relating to the current system and possible options for reform.

The Legal Framework for Burial and Cremation in New Zealand: A First Principles Review (NZLC IP34, 2013)

Is it possible for a person’s body to be buried on private land? Or for mourners to arrange the burial or cremation of a loved one without any professional assistance? Are all those providing funeral and cremation services accountable to a professional standards body?  

Are families obliged to follow any instructions we might leave about what we wish to happen to our bodies after death? And what happens if a serious disagreement arises among the bereaved about the final arrangements?   

Until faced with the task of arranging a burial or cremation, few of us are likely to be aware of the laws and regulations that control such matters as where, when, and how burials and cremations may take place; the legal responsibilities of those making decisions and arrangements on behalf of the deceased; and the responsibilities of those who establish and manage funeral homes, cemeteries and crematoria.

Our approach to death, the decisions we make and the options available to us are influenced by a mix of law, custom, belief and pragmatism. While these influences can lead to considerable diversity in how we respond to death, everyone’s decisions are constrained by the same legal parameters.

The Commission's Issues Paper, The Legal Framework for Burial and Cremation in New Zealand: A First Principles Review (IP34) was divided into four Parts, each of which focused on different aspects of the review. The Commission held consultation meetings throughout the country to discuss the issues involved with the general public, and also accepted written submissions on the Issues Paper.

Death, Burial and Cremation: A new law for contemporary New Zealand (NZLC R134, 2015)

In its report Death, Burial and Cremation: A new law for contemporary New Zealand (NZLC R134, 2015), the Law Commission concludes that the Burial and Cremation Act 1964 is outdated and should be repealed and replaced with new legislation. The Commission makes 127 recommendations about the content of that new legislation across four distinct areas. Those recommendations include the following:

Certification of the cause of death

• • The current paper-based system for determining the cause of death should be replaced by an online system.
  • Cause of death determinations should be subject to a new national audit system designed to improve the accuracy of those determinations.

Burial and cremation

• • There should be a simple set of basic obligations on all managers of land in which bodies are buried, whether those managers are local authorities, current trustees, other public entities or private entities.
  • A number of powers currently exercised by the Minister of Health should instead be exercised by local authorities because they are principally issues of land-use and it is now understood that the health concerns with dead bodies are very limited.
  • Any person or group should be able to apply to the local authority for permission to establish a cemetery or for burial on private rural land.

Funeral directors

• • People providing funeral services must be registered or actively supervised by a registered person.
  • There should be some basic prerequisite conditions to registration such as the absence of serious convictions and the achievement of a qualification.
  • Funeral service providers should be required to provide an itemised statement of costs prior to entering a contract for services.

Burial decisions

• • If a deceased person gave written directions about what should happen to their body after their death, those directions must be given effect to unless there is a compelling reason not to.
  • Legislation should introduce the role of “deceased’s representative” to which, before their death, a deceased person could appoint a trusted person to make decisions about their body and the funeral after their death.

The Government agreed with several of the Commission's recommendations but identified the need for further policy work on other recommendations.

Three recommendations were implemented through the Births, Deaths, Marriages, and Relationships Registration Act 2021.

Other ongoing implementation work is being led by the Ministry of Health.