Thursday, 09 May 2013

Setting aside areas in cemeteries for different religions

Q. Is setting aside a special area in a cemetery for a particular religion unlawful discrimination?

A. No

This issue was raised with the Commission when a local council received a complaint about their introduction of a separate area for Muslims to be interned in the public cemetery. They were told it was discriminatory.

While the Equal Opportunity Act 2010 (EOA) prohibits discrimination on the basis of religion in the provision of goods and services, it also makes allowances for the different needs of different groups. The EOA also recognises that Parliament has the power to make decisions about the balance of interests in the community.

Section 20 of the Cemeteries and Crematoria Act 2003 authorises the setting aside of areas for the internment of human remains of persons of a particular religious denomination or faith or community or other group. The EOA operates subject to this legal authority.

Section 75 of the EOA sets out what is known as a 'statutory authority exception' which says that:

(1) A person may discriminate if the discrimination is necessary to comply with, or is authorised by, a provision of:

(a) an Act, other than this Act; or

(b) an enactment, other than an enactment under this Act.

(2) For the purpose of subsection (1), it is not necessary that the provision refer to discrimination, as long as it authorises or necessitates the relevant conduct that would otherwise constitute discrimination.

The special needs exception in section 88 of the EOA can also be relevant in these kinds of situations. Section 88 allows people to provide special services that meet the special needs of people with a particular attribute (like a religious practice). However, it isn't necessary to address section 88 in these circumstances because the Cemeteries Act allows the conduct.