Grave concerns: call for clearer guidelines regarding ‘offensive’ headstones

Gisborne district councillors are today discussing a review of the council’s cemeteries bylaw which recommends a new bylaw be drafted that provides greater clarity of offensive and intimidating content when it comes to headstones and monuments. Image by Ben Cowper

Any outright ban on gang insignia on graves and monuments in council-controlled cemeteries here is likely to be highly controversial, a new report warns.

A review of Gisborne District Council’s bylaw around cemeteries has proposed a new bylaw be drafted and asks the council to clearly define what could be considered offensive.

“Staff have trouble justifying to customers why they cannot have problematic designs (offensive or large monuments) because historical installations have established precedents,” the report said.

“Some historical monuments are larger than the current 1m size restriction. Two monuments that could be considered offensive were installed in Taruheru Cemetery before the 2015 bylaw review. These headstones have large gang patch designs, and customers have complained to council that the offensive nature of these headstones interferes with their mourning.”

The current bylaw and policy references the need for monuments to “meet the aesthetic requirements of the council” but that was “insufficient” for cemetery staff, who have requested a revised bylaw provide clearer guidelines for staff on what council considers a permissible monument size and non-permissible content.

The ability to refer customers to clear guidelines would also help provide better clarity for the public on what is considered an offensive or oversized monument.

“Council has the authority to set standards and refuse monuments that do not meet those standards,” the report says. “However, care must be taken to avoid violating individual rights guaranteed under the New Zealand Bill of Rights Act 1990 (BORA) or discriminating against any sector of the community.”

The report points out that the Whanganui District Council Prohibition of Gang Insignia Bill was considered inconsistent with the freedom of expression guaranteed under BORA because gang insignia can be considered a form of expression although gang insignia was at the lower end of protected expression as it is associated with intimidation and criminal activity.

“Despite a legal precedent restricting gang insignia due to its association with intimidation and criminal activity, attempts to regulate it remain a contentious area of legislation, capturing media attention and public opinion. Scrutiny is high within a local government context where consideration of community views is both a legislative requirement and essential to the democratic process.”

“In 2012, a Porirua City Council decision to ban gang insignia was eventually amended by councillors to allow for patches as long as they do not cause offence to ‘reasonable’ people or unfairly overwhelm neighbouring graves.”

A similar proposal in Wairoa resulted in unfavourable feedback from the public.

“Concerns expressed by submitters included conflict with BORA freedoms, whether a cemetery meets the definition of a Government premises, and disturbing the peace of the departed and the memories of their whānau.

“Submitters also questioned whether the proposed bylaw was the most appropriate and proportionate way of addressing the offensive headstones, given that they hold significance for many in the Wairoa community.

“Subsequently, Wairoa District Council adopted a bylaw stipulating that monuments must be aesthetically acceptable to the council. However, the adopted bylaw does not contain any measure prohibiting offensive monuments.”

Meanwhile, Central Hawke’s Bay District Council must approve any potentially offensive insignia before burial, whereas Waipā District Council is more explicit, stating “all memorial headstones and monuments . . . shall be devoid of offensive language, offensive symbols or gang insignia (and comply with a size schedule attached to the bylaw)”.

Waipā expressly states “they may exercise discretion in allowing or denying the use of specifically requested symbols and include a provision for a right of appeal to the council to determine requests”.

The report suggest a revised bylaw here could include a clause clearly defining and prohibiting monuments displaying offensive and intimidating content. The clause could also state that applications must be made and they can be declined.

“Expressly prohibiting gang insignia on funerary monuments may prove as contentious in Tairāwhiti as it was in Porirua and Wairoa. The appropriateness of any measure to address the issue will face BORA scrutiny and the question of whether any proposed limitation is demonstrably justifiable in a free and democratic society.”

Councillors will discuss the report at today’s full (extraordinary) council meeting.