E31(134) NovemberOctober 2015, 2010, Wellington, Wellington, New New Zealand Zealand | | REPORT REPORT 134 119 DEATH, BURIAL AND CREMATION A NEW LAW FOR CONTEMPORARY NEW ZEALAND October 2015, Wellington, New Zealand | REPORT 134 DEATH, BURIAL AND CREMATION A NEW LAW FOR CONTEMPORARY NEW ZEALAND The Law Commission is an independent, publicly funded, central advisory body established by statute to undertake the systematic review, reform and development of the law of New Zealand. Its purpose is to help achieve law that is just, principled and accessible and that reflects the heritage and aspirations of the peoples of New Zealand. The Commissioners are: Honourable Sir Grant Hammond KNZM – President Judge Peter Boshier Dr Geoff McLay Honourable Dr Wayne Mapp QSO The General Manager of the Law Commission is Roland Daysh The office of the Law Commission is at Level 19, 171 Featherston Street, Wellington Postal address: PO Box 2590, Wellington 6140, New Zealand Document Exchange Number: sp 23534 Telephone: (04) 473-3453, Facsimile: (04) 471-0959 Email: [email protected] Internet: www.lawcom.govt.nz A catalogue record for this title is available from the National Library of New Zealand. ISBN: 978-1-877569-65-4 (Print) ISBN: 978-1-877569-64-7 (Online) ISSN: 0113-2334 (Print) ISSN: 1177-6196 (Online) This title may be cited as NZLC R134 This title is also available on the internet at the Law Commission’s website: www.lawcom.govt.nz ii Law Commission Report 23 October 2015 The Hon Amy Adams Minister Responsible for the Law Commission Parliament Buildings WELLINGTON Dear Minister NZLC R134—DEATH, BURIAL AND CREMATION: A NEW LAW FOR CONTEMPORARY NEW ZEALAND I am pleased to submit to you the above Report under section 16 of the Law Commission Act 1985. Yours sincerely Sir Grant Hammond President Death, Burial and Cremation: a new law for contemporary New Zealand iii Foreword We all die. And someone must care for the dead, who, as mortician Caitlin Doughty has said, “have become useless at caring for themselves”.1 Different cultures have seen this task differently. In ancient Egypt, it was the task of the jackal-headed god Anubis who would usher the dead to where their hearts would be weighed against the feather of justice; in Greek legend, the task fell to Charon, “a shaggy jowled, white haired demon who piloted sinners by boat across the river Styx into hell”.2 In New Zealand, Māori express goodwill to those who are leaving, or have departed through death, through deeply spiritual expressions of poroporoaki (farewell). As Stephen Cave indicates in his review of Doughty’s book, death is the point at which the profane and the sacred collide. It is a natural event yet surrounded by mystery and culture. It is steeped in the physical reality of bodily processes but surrounded by different ideas and philosophies about the long goodbye.3 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. 1 Caitlin Doughty Smoke gets in your eyes & other lessons from the crematory (WW Norton & Company, 2014). 2 Stephen Cave “The long goodbye: confronting death” Financial Times (3 July 2015) <www.ft.com/intl/cms/s/0/ 90935928-1fe5-11e5-ab0f-6bb9974f25d0.html>. 3 Cave, above n 2. iv Law Commission Report 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 President Death, Burial and Cremation: a new law for contemporary New Zealand v Acknowledgements We are grateful to all the people and organisations that provided input during this review. We would particularly like to thank the individuals, organisations, local authorities and government departments with whom we consulted, who made submissions or who expressed their views during our public meetings. A list of submitters can be found in Appendix C. The Commissioner responsible for this reference project is the Honourable Dr Wayne Mapp. The legal and policy advisers for this Report were Linda McIver, Mihiata Pirini and Kate McKenzie-Bridle. We also acknowledge the contribution of present and past colleagues – law commissioner Dr Warren Young, senior researcher and policy adviser Cate Honoré Brett and legal and policy advisers Eliza Prestidge Oldfield, Jo Hayward and Jennifer Moore. vi Law Commission Report Contents Foreword .................................................................................................................................................. iv Acknowledgements .................................................................................................................................. vi Glossary of Māori terms ............................................................................................................................ 5 Executive summary ................................................................................................................................... 6 Death certification ................................................................................................................................ 7 Cemeteries and crematoria ................................................................................................................... 9 The funeral sector .............................................................................................................................. 13 Burial decisions .................................................................................................................................. 16 Summary of recommendations .............................................................................................................. 20 Chapter 1 Introduction ........................................................................................................................... 36 Scope of review .................................................................................................................................. 36 Consultation ....................................................................................................................................... 37 The need for reform ........................................................................................................................... 39 A new statute ..................................................................................................................................... 39 Values underpinning our proposals .................................................................................................