The Short Title of this Act is “The Cemeteries Act, 1908.”

This Act is a consolidation of the enactments mentioned in the Schedule hereto, and with respect to those enactments the following provisions shall apply:—

Savings.

In this Act, if not inconsistent with the context,—

The provisions of this Act shall apply to every cemetery and burial-ground as herein respectively defined.

The Governor may from time to time appoint and remove so many Trustees, not fewer than three in number, as he thinks fit, to have the maintenance and care of any cemetery.

Where any Trustee dies, or resigns his trusteeship, or becomes lunatic, or is removed by the Governor, or is absent from New Zealand for six consecutive months, his seat shall become vacant, and the Governor may appoint a new Trustee in his place.

Every such appointment shall be gazetted.

The Governor may from time to time, by Order in Council gazetted, delegate to the Council of any borough or county the powers hereby conferred on him of appointing or removing Trustees.

Where such powers are so delegated the following provisions shall apply:—

Every appointment or removal of Trustees of a cemetery by any Council as aforesaid shall be publicly notified in the district wherein the cemetery is situate, and it shall not be necessary to notify the same in the Gazette.

Every appointment or removal of Trustees by any Council as aforesaid shall take effect as if made by the Governor, and all the provisions of this Act shall be construed accordingly.

Every cemetery that is under the control of the Council of any borough, or in respect of which such Council has the power of appointing Trustees, shall for all purposes of this Act be deemed to be within the jurisdiction of such Council, notwithstanding that such cemetery may be beyond the limits of the borough.

Trustees appointed under this Act shall have power to hold any land conveyed to them by grant from the Crown or other sufficient instrument of conveyance, or in any manner vested in them, in trust for the establishment or purposes of a cemetery.

The legal estate in the land comprised in the cemetery, and all moneys, goods, chattels, and effects of or belonging to or connected with such cemetery, shall become vested in the Trustees for the time being immediately upon their appointment.

A copy of the Gazette containing a notice of the appointment of any Trustees or Trustee shall be sufficient evidence of such appointment.

The Trustees shall not make use of any such land for any purpose except such as is authorised by this Act, or charge or alienate such land or any part thereof by mortgage, sale, lease, or otherwise, or dispose of the rents, issues, and profits thereof, except as in this Act is expressly provided.

Upon every new appointment of a Trustee the legal estate in all land held by any vacating Trustee in trust for the purposes aforesaid shall, without any further conveyance, vest in the new Trustee or Trustees solely, or jointly with the continuing Trustee or Trustees, as the case may require.

All acts, matters, and things which the Trustees are authorised and required to do by any of the provisions of this Act shall and may be done by any three of such Trustees assembled at a meeting whereof due notice has been given or forwarded to all the Trustees.

The majority in number present at any meeting of Trustees shall decide and determine all questions, matters, and things discussed or considered at such meeting; and in case of equality of votes the Chairman shall have a second or casting vote.

The Trustees, out of any moneys received by them under the authority of this Act, may pay the salaries of a clerk and of all sextons and such other subordinate officers as they think necessary from time to time to appoint, and also the necessary incidental charges of management of the cemetery.

The Trustees may, for the purpose of defraying the expenses of the preliminary work of laying out a cemetery in proper order and securing the same, from time to time borrow money by way of loan at any rate of interest not exceeding six pounds per centum per annum, which loan, together with the interest accruing thereon, shall have priority over all charges on the funds received by the Trustees under the authority of this Act, excepting expenses of management and any lawful charges existing at the time the money is borrowed.

All sums received for the purchase of sites of graves, and all fees or sums paid upon interments in any part of a cemetery, shall be received by the Trustees of such cemetery and applied in the first place to the payment of necessary current expenses and interest on loans (if any), and, subject thereto and to the paying-off of such loans, shall be applied to and for the several other purposes and objects authorised by this Act.

Subject to this Act, every cemetery shall be open for the interment of all deceased persons, to be buried with such religious or other ceremony, or without any such ceremony, as the friends of the deceased think proper.

The Trustees may from time to time make by-laws for convening meetings, the appointment of their Chairman, and for such other purposes as may be necessary for their guidance and management.

Subject to any regulations that may be made under section seventy-nine hereof, the Trustees may from time to time make such regulations as are necessary and proper for all or any of the purposes hereinafter mentioned, that is to say:—

Every by-law or regulation and every scale of fees made under this Act shall be publicly notified by the Trustees at least seven days before it comes into operation.

A copy of every such notice shall be transmitted to the Minister, and a copy of every such scale of fees shall be affixed or posted in some conspicuous part of the cemetery, and shall at all times be maintained there in a distinct and legible condition.

The Trustees of any cemetery may, and upon an order signed by a Justice shall, permit the body of any deceased poor person, and of any person from any hospital, lunatic asylum, gaol, prison, or other public institution, on the request of the person in charge of such institution, to be buried in the cemetery free of charge:

Provided that every Justice, before signing any such order, shall satisfy himself that such deceased person has not left sufficient means to pay the charge, or that his relatives and friends are unable to pay the same.

If any such person is known or believed to have belonged to any particular religious denomination, he shall be buried in the portion of the cemetery (if any) set apart for that denomination.

The Trustees may from time to time—

The Trustees may sell either in perpetuity or for a limited period the exclusive right of burial in any part of the cemetery, and also the right of constructing any vault or place of burial with the exclusive right of burial therein.

The relatives or friends of a person buried in any cemetery may, at any time within two years from the date of his burial, purchase the exclusive right of burial in perpetuity, or for a limited period, in the piece of land in which the burial has taken place.

Before any corpse is permitted to be buried in any vault, brick grave, or in any place of burial, the exclusive right of burial wherein has been sold or granted as a family or private burial-place, the Trustees, or any officer employed by them, may require satisfactory evidence that the person for the time entitled as owner to such exclusive right has consented or would not object to the burial taking place therein.

Subject to the provision contained in section forty hereof, the following provisions shall be in force with respect to the construction of vaults and monuments in any cemetery:—

Upon the application of the governing body of any religious denomination, the Trustees of a cemetery may permanently appropriate and set apart a portion of the cemetery to be used only for the burial of the bodies of members of such denomination.

“Governing body” of a denomination means the recognised senior office-bearer thereof in any diocese or district, or in the absence of such person, or if there is no such person, any two persons of the same denomination holding therein any of the offices of minister or deacon, churchwarden, church manager, trustee, or other equally responsible office.

If the Trustees are of opinion that the members of any such denomination are inconsiderable in number, the Trustees may refuse such application as aforesaid, and the governing body so applying may thereupon appeal against the decision of the Trustees to any Magistrate exercising jurisdiction at or near the place where such cemetery is situate, and the Magistrate shall consider the appeal and make such order thereupon as seems to meet the justice of the case.

The Trustees shall define by suitable marks, not being a dividing fence, the portion of the cemetery set apart for any particular denomination, and such portion may, at the expense of the denomination, be enclosed with any suitable open fence of a character that will not mar the general appearance of the cemetery.

The Trustees shall permit the portion so set apart to be consecrated according to the rites of the denomination, and the portion so consecrated shall be used only for burials according to the rites of that denomination.

Where the members of any denomination desire at their own expense to build in a cemetery a suitable mortuary church or chapel for the performance of the rites and ceremonies in the burial of the dead according to the usages of that denomination, the Trustees shall permit the same to be built within such portion of the cemetery as is specially set apart for that denomination.

The Trustees shall not by any regulation, or any act, matter, or thing, at any time interfere directly or indirectly with—

The minister of any denomination for which any portion of a cemetery is specially set apart shall at all times have free right of access and admission thereto, and may freely exercise his spiritual functions therein, without any hindrance or disturbance by the Trustees or any other person.

Every denomination shall have power to regulate the order and course in which the ground set apart for its exclusive use shall be opened and used for the purpose of burials, and the times at which burials therein may take place, and the setting-up of tombstones and monuments, and the inscriptions thereon, and the removal of such tombstones or monuments.

Every denomination may from time to time appoint fit and proper persons to be guardians of the portion of a cemetery set apart for its exclusive use, and the guardians shall, in respect of such portion, have all the control and management thereof, subject, however, to the powers granted by this Act to the Trustees.

The powers and authorities granted to Trustees of a cemetery by section thirty hereof shall, within any portion of the cemetery set apart for any denomination, be exercised exclusively by the guardians of such portion, and the Trustees shall have no right or authority to interfere with such guardians in the exercise of such powers:

Provided that all fees payable in respect of anything mentioned in that section shall be paid to the Trustees.

The Trustees shall keep full accounts of all moneys received and expended by them, and shall prepare an abstract of such accounts, made up to the thirty-first day of December in each year; and such accounts and abstracts shall at all reasonable times be open to the inspection of any person appointed by the Governor in that behalf.

In the month of January in each year the Trustees shall furnish to the Audit Office a statement of accounts, showing full particulars of all moneys received and paid by them during the year ending on the thirty-first day of December then last past.

Every such statement of account shall be examined and audited by the Audit Office, under the provisions of “The Public Revenues Act, 1908,” and no fees shall be chargeable for such audit.

Any person, by will or deed duly executed, may direct that his body shall after death be disposed of by cremation instead of by burial in the earth, and the executors of such person may carry such direction into effect in the manner provided by this Act.

The Trustees may make provision for cremation, and may erect a crematorium, whether within the limits of the cemetery under their control or not.

The Governor in Council may from time to time make regulations prescribing conditions without the observance whereof no cremation shall be effected.

Subject to any such regulations the Trustees may from time to time make by-laws for all or any of the following purposes:—

No such by-law shall have any force or effect unless and until the same has been approved by the Minister, and his approval has been publicly notified.

Subsections two and three of section one hundred and nineteen and subsections one to nine of section one hundred and twenty of “The Public Works Act, 1908,” shall be deemed to be incorporated in this Act, with the following modifications, that is to say: The word “crematorium” shall be read in lieu of the word “bridge” and of the words “ferry or ford” wherever those words occur in the said sections respectively.

It shall be the duty of every local authority to provide a suitable cemetery for the burial of the dead, where sufficient provision is not otherwise made for that purpose, or where under the powers contained in this Act any cemetery has been closed.

Any local authority may appropriate and expend out of its district or other general fund such moneys as from time to time it thinks necessary in the purchase or other acquisition of land suitable for a cemetery, with the requisite approaches thereto, and in the establishment and maintenance of such cemetery, and may borrow money for any of the aforesaid purposes in any manner in which it is empowered to borrow money for other purposes.

Such land may be acquired in any convenient place, either within or beyond the district under the control of such local authority:

Provided that nothing in this section shall be construed to authorise the establishment of a cemetery or burial-ground within the limits of a borough or town district.

The acquisition of land by a local authority for a cemetery, and for sufficiency of approach thereto, or the widening of existing approaches, shall be deemed to be a public work within the meaning of “The Public Works Act, 1908”; and all powers that the local authority has under that or any other Act for taking, purchasing, or otherwise acquiring lands for public works shall be applicable to the acquiring of land for a cemetery.

Where any land that may be lawfully used for the purposes of a cemetery has been in any way acquired by or vested in a local authority for such purposes, the local authority may by public notice, published once at least in each of three consecutive weeks, declare such land to be dedicated and open as a cemetery; and thereafter the same shall be used as a cemetery only.

In any such case the local authority dedicating any land for a cemetery shall be the Trustees of such cemetery without further appointment, and, subject as provided in this Act, shall in respect of such cemetery have all the powers granted to Trustees of cemeteries.

Two or more local authorities may agree in providing one cemetery for common use in such manner not inconsistent with this Act as they think fit, and may agree as to the proportions in which the cost of acquiring or maintaining such cemetery shall be borne between and amongst them.

They may also agree which of them shall have the management and control of such cemetery in accordance with and subject to the provisions of this Act; and if they do not so agree, the Governor on application to him for that purpose may declare which of them shall have the management and control.

Instead of entering into any such agreement as aforesaid, any local authority may appropriate out of its local fund and pay over to any other local authority such sum as it thinks fit to be expended in the acquisition of a cemetery.

The Governor may from time to time appoint any local authority by name, and without naming the individual members thereof, to be the Trustees of any cemetery and to have the control and management thereof.

For the purposes of this and the next succeeding section the expression “local authority” includes a Road Board in a county where there is a County Council, and in such case the County Council shall have no jurisdiction over any cemetery situate within the district of such Road Board.

Where any local authority has the control or management of a cemetery the following provisions shall have effect:—

All moneys received by the local authority under this Act shall be paid to a separate account in the local fund, and applied in the first place in the payment of all necessary expenses for the improvement and management of the cemetery; and all accounts shall be otherwise kept in like manner as the ordinary accounts of the local authority are kept.

The Managers of burial-grounds shall have all the rights, powers, and duties by this Act granted to or imposed upon Trustees of cemeteries, and the provisions of this Act relating to Cemeteries shall, as far as applicable, mutatis mutandis, apply in respect of such Managers and burial-grounds.

The said Managers may exercise the rights, powers, and duties aforesaid, notwithstanding that the legal estate in the burial-ground for which they are appointed is not vested in them.

Where the members, or any number (not less than twenty-five) of the adult members, of any religious denomination desire that any land acquired by them should be set apart as a burial-ground, to be used only for the burial of the members of that denomination, they may, with the sanction of the Minister, by public notice published at least once in each of three consecutive weeks, declare the same to be dedicated and open as a burial-ground to be used as aforesaid, and thereafter the said land shall be used for such purpose only:

Provided that the Minister may refuse to grant his sanction if by reason of its position or other sufficient cause he thinks such land is not fitted for a burial-ground.

No cemetery or burial-ground of any kind shall be established within the limits of any borough or town district.

Every part of a cemetery and burial-ground shall be enclosed by walls or other sufficient fences, and the Trustees or Managers having charge of any cemetery or burial-ground shall be keep the same and the buildings and fences thereof in good repair and condition out of the moneys received by them under this Act.

No body shall be buried in any vault under any chapel in any cemetery or burial-ground, or within fifteen feet of the outer wall of any such chapel.

The Trustees or Managers having charge of any cemetery or burial-ground—

If the Trustees or Managers of any cemetery or burial-ground cause or suffer to be brought or to flow into any river, stream, reservoir, aqueduct, lake, pond, or watering-place, or into or upon any public highway or public place, any offensive matter from the cemetery or burial-ground, whereby the water therein is fouled, or whereby any nuisance is occasioned upon or in such public highway or place, they shall for every such offence be liable to a fine not exceeding fifty pounds.

The said fine, with full costs of proceedings, may be recovered summarily by any person having right to use the water fouled by such offensive matter, or frequenting such public highway or public place; but shall not be recoverable unless the proceedings are commenced during the continuance of the offence or within six months after it has ceased.

Nothing in this Act shall take away from or deprive any person of the right to proceed by way of indictment for a nuisance, or to take any other proceedings he thinks fit.

All burials within any cemetery or burial-ground shall be registered in a book or register to be provided and kept for that purpose by the Trustees or Managers; and in such register shall be distinguished in what parts of the cemetery or burial-ground the several bodies are buried, and a proper description of every grave shall be given, so that the situation thereof can be ascertained, and such register shall be indexed, so as to facilitate searches for entries therein.

Every register shall be open for inspection at all reasonable hours in the daytime, at some convenient place, upon payment of a fee of one shilling for every such inspection.

It shall not be lawful to remove from its burial-place anybody, or the remains of any body, buried in any cemetery, burial-ground, or other place of burial, without license under the hand of the Minister, and with such precautions as he may prescribe as the condition of such license.

Any person who removes any body, or the remains of any body, contrary to the last preceding section, or who neglects to observe the precautions prescribed as the condition of the license for removal, shall, on complaint made by the Trustees, Managers, or persons having the control of such cemetery or burial-ground, or by any officer or servant employed by them in the said cemetery or burial-ground, or by any person to whom the burial-place belongs, be liable for every such offence to a fine not exceeding fifty pounds, or, at the discretion of the convicting Justices, to imprisonment for any term not exceeding three months.

The Minister may from time to time appoint and authorise any person to inspect any cemetery, or any portion thereof exclusively set apart for any denomination, or any burial-ground, and ascertain the state and condition thereof, and to examine the accounts of receipts and expenditure in relation thereto, and, where regulations in relation thereto have been made under this Act, to ascertain whether such regulations are observed and complied with.

If any Trustee, Manager, guardian, or other person having the care of or employed in any such cemetery or burial-ground subject to such regulations as aforesaid violates, or fails to conform to or obey, or to enforce, any such regulations he shall be liable to a fine not exceeding ten pounds.

If any person appointed as aforesaid finds any cemetery or burial-ground or any part thereof, or the fences thereof, in a state of neglect or want of repair, he may cause all necessary repairs to be forthwith done, and the costs and expenses thereof may be recovered in a summary way from the Trustees or Managers of such cemetery or burial-ground; or else he may report the case to the Governor, who thereupon may order any such cemetery or burial-ground to be closed, or take such steps upon any such report as he thinks necessary in order to prevent desecration.

Where it appears to the Governor that burials in any cemetery or burial-ground should be wholly discontinued, or should be discontinued subject to any exception or qualification, he may, by Order in Council gazetted,—

No such Order of discontinuance shall be made until the local authority of the district in which the said cemetery or burial-ground is has provided a sufficient cemetery, not within the limits of any borough or town district, and has prepared the same for the burial of the dead therein.

Any person who has acquired a plot of ground wherein no burial has been made, in any cemetery or burial-ground which is closed by any such Order, shall be entitled at any time within two years after the opening of the new cemetery, and subject to the regulations thereof, to select therein free of charge a piece of ground for the burial of the dead, equal in size to that of the use whereof he has been deprived by such Order.

Notwithstanding any Order made as aforesaid, where any person has been buried in a cemetery or burial-ground previously to the closing thereof, any survivor of such person, being within the degrees of relationship of husband, wife, parent, child, brother, or sister to the deceased, may be buried in the same plot of ground with the said deceased.

Every person is liable to a fine not exceeding one hundred pounds who, in breach of any such Order, buries anybody, or in anywise acts, or assists, or suffers, or permits the burial of any body, in any cemetery or burial-ground that has been closed as aforesaid.

With the consent in writing of the Minister the relatives of any deceased person may cause the body of such deceased person to be removed from any closed cemetery or burial-ground, and to be buried in any cemetery or burial-ground that is not closed.

Nothing in this Act relating to the closing of cemeteries or burial-grounds shall be construed to divest, alter, or affect the right, title, or interest of any Trustees, guardians, or Managers of any denomination, or any person or persons, in or to any places in the existing cemeteries or burial-grounds, or in or to any vault, monument, headstone, mortuary chapel, or any other place, matter, or thing therein, or such free right of ingress or egress as they respectively now have in, from, and through the same, or to affect such right of control and management of the site of such burying-places as they now have, save as to future burials.

Every cemetery or burial-ground closed by Order in Council shall, from and after the date of such Order, be vested in any persons or corporate body named in such Order, and shall thenceforth be maintained in good order by such persons or corporate body as a public reserve, open to the public under such regulations as may from time to time be made under this Act, and such reserve shall not be sold or leased or diverted to any other purpose.

The Governor may from time to time make regulations, in relation to all or any cemeteries or burial-grounds, for the protection of the public health and the maintenance of public decency, and for the conduct of persons using or frequenting any cemetery or burial-ground closed by Order in Council, and may impose fines not exceeding five pounds for the breach of any such regulation.

The Trustees, Managers, and all persons having the care of or employed in such cemeteries and burial-grounds respectively shall conform to and obey and enforce such regulations.

The power of the Trustees to make regulations under section twenty-two hereof shall be construed subject to the Governor’s powers under this section, and accordingly regulations made by the Governor shall be deemed to modify or revoke those made by the Trustees in so far as any inconsistency exists.

It shall not be lawful to bury anybody in any land not being a cemetery or burial-ground, if there is any such cemetery or burial-ground within five miles of the place where the death has taken place, or of the place whence such body is taken for the purpose of being buried.

Every person who offends against the provisions of this section is liable to a fine not exceeding fifty pounds.

Where there is not a cemetery or burial-ground within the distance mentioned in the last preceding section, then and in such case bodies may be buried in land not being a cemetery or burial-ground; but notice of every such burial, specifying the name of the person buried, if known, the supposed cause of death, and the place of burial, shall, within three days after the burial, be given by the person burying the body to the nearest Magistrate or Justice.

Every person who offends against the provisions of this section is liable to a fine hot exceeding fifty pounds.

Notwithstanding anything in this Act, anybody may be buried in any private burial-place heretofore used for burials; but no such burial shall be made without the previous sanction of a Magistrate or two Justices, or, if within a borough, without the additional sanction of the Mayor or two Councillors.

Every sanction so given shall be in writing, and shall disclose the name of the person to be buried, the supposed cause of death, and the place of proposed burial.

Such sanction shall not be refused in any case provided for by this section unless the Magistrate or Justices, or Mayor or Councillors, as the case may be, are of opinion that such burial would be prejudicial to public health or decency.

Every person who buries any body, or permits or suffers any body to be buried in any such private burial-place, without such sanction as aforesaid, is liable to a fine not exceeding fifty pounds.

The Trustees or Managers of any cemetery or burial-ground shall have power to prosecute all persons who at any time do or cause to be done any damage to any building, monument, tombstone, shrubbery, plantation, or enclosures of the cemetery or burial-ground, or who are guilty of any indecency or misbehaviour therein, or who offend in any way against the provisions of this Act.

Every person who—

is liable for every such offence to a fine not exceeding twenty pounds, or, at the discretion of the convicting Justices, to imprisonment for any period not exceeding three months.

Irrespective of his liability under the last preceding section, every person who does or causes to be done any injury to any monument, vault, tombstone, building, erection, railing, shrubbery, tree, or plant, or wall or fence of or in any cemetery or burial-ground, whether the same is done wilfully or wantonly or otherwise, is liable to pay a reasonable sum of money by way of damages and compensation therefor, which said sum of money shall be recoverable by the Trustees or Managers of the cemetery or burial-ground, or by any person injured by such damage.

Every person who is guilty of any indecent conduct or language within any cemetery or burial-ground, or commits any nuisance therein, or plays at any game or sport, or discharges firearms, save at a military funeral therein, or daubs or disfigures any wall or fence in or around any cemetery or burial-ground, or puts up any bill on any such wall or fence, is liable for every such offence to a fine not exceeding ten pounds.

Any Trustee or Manager, or any officer or servant of the Trustees or Managers of any cemetery or burial-ground, and all such persons as he calls to his assistance, may seize and detain any person who commits or is in the act of committing an offence against this Act, and whose name and place of abode is unknown to such Trustee, Manager, officer, or servant, and may convey such person before a Justice without other warrant or authority than this Act.

In case such person refuses to satisfy the Justice as to his name and place of abode, such Justice is hereby empowered and required either to proceed immediately to the hearing and determining of the complaint in the same manner as if heard by summons before two or more Justices, or to order such person to be detained in custody until he is brought before two or more Justices to be dealt with in the ordinary course.

If any animals, being neat cattle, horses, swine, or goats, are found trespassing in any cemetery or burial-ground, the owners of the animals are liable for every such offence to a fine not exceeding five pounds and not less than one pound in respect of every animal so found trespassing, without proof of special damage, and notwithstanding that actual damage is not proved.

Every person who commits any offence against this Act for which no penalty is herein elsewhere provided is liable to a fine not exceeding ten pounds.

One moiety of the money arising from any fine imposed by this Act shall, when recovered, be paid to the Trustees of the cemetery or Managers of the burial-ground in respect whereof such fine is imposed, for the uses of such cemetery or burial-ground, and the other moiety to the use of the informant or person prosecuting.

No proceeding had and taken in a summary way in pursuance of this Act shall be removed by certiorari or other process into the Supreme Court or any other Court.