Funeral and Burial Instructions: Consultation Paper

5. Reasons for reform

Introduction

5.1 This chapter highlights the problems with the law on funeral and burial instructions in Victoria.

Lack of community awareness

5.2 Few Victorians know who has the right to dispose of their body or are aware that any funeral and burial instructions they leave in their will or elsewhere are not legally binding.

5.3 Many people choose the executor of their will on the basis of their legal or financial skills, not realising that they are also granting that person the right to dispose of their body. For those who have not left a will, responsibility for the disposal of their body will most likely fall to their partner or closest blood relative.

5.4 Regardless of who controls the disposal of the body, it may trouble a person to know that any specific instructions they leave behind do not have to be adhered to. As discussed below, this may be particularly problematic where there is ongoing conflict within a family, parents have re-partnered, or family members have different cultural and religious beliefs.^[1]

Legal foundation

5.5 As discussed in Chapter 3, the finding that a person cannot leave binding instructions regarding the disposal of their body rests on the proposition that no one can own a dead body (the ‘no property’ rule).^[2] This proposition is built upon a 1614 case, Hayne’s case.^[3]

5.6 In Williams v Williams, Justice Kay relied on Regina v Sharpe^[4] when declaring, ‘It is quite clearly the law of this country that there can be no property in the dead body of a human being.’^[5] The case of Regina v Sharpe concerned a son who dug up his mother’s coffin in order to bury her in another location along with his recently deceased father.^[6] When affirming the son’s conviction for trespass, Justice Erle rejected the argument that children have property rights in the bodies of their deceased parents, stating that ‘Our law recognises no property in a corpse’.^[7]

5.7 While Justice Erle provided no authority for this statement of the law, it had been promulgated earlier by a number of legal scholars.^[8] However, these scholars either cited each other or Hayne’s case.^[9]

5.8 In Hayne’s case, the accused was convicted of theft for digging up dead bodies and stealing the sheets in which the bodies were wrapped.^[10] The court held that the sheets remained the property of the owners who placed them around the dead bodies as a dead body cannot own property.^[11]

5.9 Despite its questionable history, the ‘no property’ rule was affirmed in Australia in the High Court case of Doodeward v Spence. All three members of the High Court accepted that immediately after death, a dead body is not property. However, Chief Justice Griffith stated:

I do not, myself, accept the dogma of the verbal inerrancy of ancient text writers. Indeed, equally respectable authority, and of equal antiquity, may be cited for establishing as a matter of law the reality of witchcraft.^[12]

5.10 In other contexts, such as native title, the concept of property has evolved beyond the traditional common law notion of the right to own, and therefore use, give away or sell, a tangible object.^[13] In Yanner v Eaton, the High Court stated:

The word ‘property’ is often used to refer to something that belongs to another. But … ‘property’ does not refer to a thing; it is a description of a legal relationship with a thing. It refers to a degree of power that is recognised in law as power permissibly exercised over the thing. The concept of ‘property’ may be elusive. Usually it is treated as a
‘bundle of rights’. But even this may have its limits as an analytical tool or accurate description…^[14]

5.11 When property is conceived of in this broader sense, it could be that there is property in a dead body. As Prue Vines has argued, conceiving of property as a bundle of rights and obligations allows for multiple characterisations of property, ‘including custodianship for a communal group which sees the autonomy and the dignity of the deceased as a central concern, perhaps drawing on the memory and identity of the deceased’.^[15]

5.12 The Commission expresses no view on whether a dead body should or should not be thought of as property. The point is that the current legal framework is built on a proposition that may be open to challenge.

The need for a better legal solution

5.13 Several judges have questioned the adequacy of the law’s response to funeral and burial disputes. In the New South Wales case of Warner v Levitt, Justice Brownie remarked:

It is … an unhappy fact that the parliament has not seen fit to enact any statute to deal with the topic so that judges have had to deal with cases as and when they are brought forward, on very short notice, on imperfect evidentiary material, and in circumstances which all concerned find distressing.^[16]

5.14 In Warner v Levitt, the foster parents of the deceased challenged the biological parents of the deceased for the right to bury the body. The judge assumed on the evidence before him, although it was contested, that the deceased had been abused by his biological parents as a young boy, and that he had subsequently been in the care of his foster parents for a long time.^[17] Nonetheless, Justice Brownie granted the biological parents the right to bury the body on the ground that, under the common law, ‘blood parents’ have the obligation, and therefore the right, to bury their dead children’s bodies.^[18]

5.15 Although some appear to be moving away from this approach,^[19] Australian judges have historically dealt with the need to make quick decisions in complicated cases by refusing to consider cultural and other concerns. As Justice Martin stated in the Northern Territory case of Calma v Sesar:

[The deceased’s parents’] respective legal claims were subsumed by deep emotion emanating from, and affecting not only them, but other members of the deceased’s extended family as well. Questions relating to cultural values and customs intercede. To state that the court was asked to make a decision taking into account matters relating to burial in a homeland and the profession of the Roman Catholic faith demonstrates just some of the imponderables. Further, issues such as these could take a long time to resolve if they were to be properly tested by evidence in an adversary situation. A legal solution must be found; not one based on competing emotions and the wishes of the living, except in so far as they reflected a legal duty or right. That solution will not embrace the resolution of possibly competing spiritual or cultural values.^[20]

5.16 In the Victorian case of Leeburn v Derndorfer, Justice Byrne described the law’s attempt to accommodate the concerns of interested parties within a strict hierarchy of entitlement in complex circumstances as uncharacteristically awkward.^[21]

5.17 Justice William Young also questioned this approach in the New Zealand case of Takamore v Clarke, observing that there was little logic to the executor rule and even less logic to the likely administrator rule.^[22]

Legislative exceptions to the ‘no property’ rule

5.18 There are two legislative exceptions to the ‘no property’ rule in Australia, demonstrating that it is not an inflexible or inviolable rule.

5.19 As discussed at [4.5]–[4.10], every Australian state and territory except Tasmania upholds instructions of the deceased regarding their cremation in certain circumstances. While some states uphold instructions not to cremate, others uphold instructions to cremate. Two states uphold both in certain circumstances.^[23]

5.20 Under the Human Tissue Act 1982 (Vic) a person’s wish not to donate their tissue after they die must be adhered to by the authorised medical practitioner considering whether to allow the removal of tissue from their dead body.^[24] However, a person’s wish to donate their tissue does not have to be adhered to^[25] and, in practice, an authorised medical practitioner will not uphold the wishes of the deceased where the deceased’s next of kin objects.

5.21 This legal regime for tissue donation is replicated across Australia.^[26]

Different social context in which the law is now applied

5.22 Much has changed since the 19th century when it was determined that people could not leave binding funeral and burial instructions.

5.23 In 1884, Justice Stephen in R v Price stated that it was evident in previous judgments concerning the disposal of bodies that ‘The law presumes that everyone will wish that the bodies of those in whom he was interested in their lifetime should have Christian burial’. These cases did not consider ‘The possibility of a man’s entertaining and acting upon a different view’.^[27]

5.24 Justice Stephen then held that cremation was lawful in England provided that it was not carried out in a manner so as to constitute a public nuisance.^[28] However, cremation continued to be regarded by many as distasteful, and was banned by the Roman Catholic Church in 1886.^[29]

5.25 As noted in Chapter 1, Victoria today is much more diverse than 19th century England. With over one-third of all marriages in Australia being re-marriages,^[30] and almost one-fifth of Victoria’s population hailing from a non-English speaking country,^[31] it is clear that the religious and cultural assumptions on which the law is based no longer necessarily reflect the society in which the law is now being applied.

5.26 In the 2011 census, 24 per cent of the Victorian population indicated that they did not follow any religion,^[32] three per cent indicated that they followed Buddhism, and a further three per cent indicated that they followed Islam.^[33]

5.27 Unfolding alongside these developments has been a greater recognition of individual autonomy. People now make a variety of choices in life about how they wish to recognise their identities and relationships, and they may wish for or expect that their funeral and burial arrangements will reflect those choices. It may be considered disrespectful to the deceased, as well as to adversely affected survivors, to make funeral and burial arrangements that are inconsistent with the deceased’s preferences.

1. See [6.12].

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2. Williams v Williams (1882) 20 Ch D 659, 663–5.

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3. Hayne’s case (1614) 12 Co Rep 113.

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4. R v Sharpe (1856–1857) Dears & Bell 160.

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5. Williams v Williams (1882) 20 Ch D 659, 663.

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6. R v Sharpe (1856–1857) Dears & Bell 160.

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7. Ibid 161.

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8. See Sir William Blackstone, Commentaries on the Laws of England, Bl Comm, vol 2, 428–9 as cited in Rosalind F Croucher and Prue Vines, Succession: Families, Property and Death Text and Cases (LexisNexis Butterworths, 3rd ed, 2009) 156 [4.32]. See also Sir Edward Coke, The Institutes of the Laws of England, 3 Co Inst 110 as cited in Paul Matthews ‘Whose Body? People as Property’ (1983) 36 Current Legal Problems 193, 198.

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9. Matthews, above n 8.

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10. Hayne’s case (1614) 12 Co Rep 113.

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11. Ibid. The court reasoned that ‘If apparel be put upon a boy, this is a gift in the law, for the boy hath capacity to take it; … but a dead body being but a lump of earth hath no capacity’: at 113.

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12. Doodeward v Spence (1908) 6 CLR 406, 412.

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13. Prue Vines, ‘The Sacred and the Profane: The Role of Property Concepts in Disputes about Post-mortem Examination’ (2007) 29 Sydney Law Review 235, 241–6.

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14. Yanner v Eaton (1999) 201 CLR 351 [17]. In Yanner v Eaton, an Aboriginal man killed two crocodiles and ate them with members of his clan. He was charged with taking fauna without a statutory permit. His defence was that he was acting pursuant to his native title rights and did not need a permit.

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15. Vines, above n 13, 258.

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16. Warner v Levitt [1994] 7 BPR 15,110, 15,110.

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17. Ibid 112.

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18. Ibid 115.

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19. See [3.10]–[3.17].

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20. Calma v Sesar (1992) 2 NTLR 37, 42.

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21. Leeburn v Derndorfer (2004) 14 VR 100, 102.

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22. Takamore v Clarke [2012] NZSC 116, [202]–[206] (in dissent).

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23. Public Health Regulation 2012 (NSW) reg 77; Cremation Act 1929 (WA) s 13.

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24. Tissue includes ‘an organ, or part, of a human body or a substance extracted from, or from a part of, the human body’: s 3 Human Tissue Act 1982 (Vic).

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25. Human Tissue Act 1982 (Vic) ss 26(1), 26(2).

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26. Human Tissue Act 1983 (NSW) s 23; Transplantation and Anatomy Act 1983 (SA) s 21; Human Tissue Act 1985 (Tas) s 23; Human Tissue and Transplantation Act 1982 (WA) s 22; Transplantation and Anatomy Act 1979 (Qld) s 22; Transplantation and Anatomy Act 1978 (ACT) s 27; Transplantation and Anatomy Act 1979 (NT) s 18(1), 19B.

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27. R v Price (1884) 12 QBD 247, 250.

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28. Ibid 247.

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29. Robert Nicol, This Grave and Burning Question: A Centenary History of Cremation in Australia (Adelaide Cemeteries Authority, 2003) 37.

    See also [1.8].

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30. Australian Bureau of Statistics, 3310.0—Marriages and Divorces, Australia, 2013 (26 November 2014) <http://www.abs.gov.au>.

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31. Victorian Multicultural Commission, 2011 Census: A Snapshot of our Diversity <http://www.multicultural.vic.gov.au/population-and-migration/victorias-diversity>.

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32. Victorian Multicultural Commission, Victoria: Responses to Religious Affiliation (One Digit Level), 2011, 2006 Census

    <http://www.multicultural.vic.gov.au/population-and-migration/victorias-diversity/2011-census-a-snapshot-of-our-diversity>.

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33. Ibid.

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