Coroners (Inquests and Privilege) Amendment Bill

Introduction and First Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (15:54): Obtained leave and introduced a bill for an act to amend the Coroners Act 2003 and to make related amendments to the Guardianship and Administration Act 1993. Read a first time.

Second Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (15:55): I move:

That this bill be now read a second time.

The Coroners (Inquest and Privilege) Amendment Bill 2020 is a bill for an act to amend the Coroners Act 2003 and to make related amendments to the Guardianship and Administration Act 1993. There are two important aspects of the bill which need some explanation.

The first is to provide that in the holding of inquests by the Coroner in respect of reportable deaths, the circumstances in which an inquest is to be held if a Coroner decides it is necessary or desirable to do so, or at the direction of the Attorney-General, the circumstances in which a person is subject to a detention order under the Guardianship and Administration Act 1993, and in which a person is subject to an inpatient treatment order under the Mental Health Act 2009, if a person is in a ward that is not wholly set aside for the treatment of persons with a mental illness.

It also clarifies that a death in such circumstances will not be taken to be a death in custody and that the death of a person while subject to an inpatient treatment order under the Mental Health Act 2009, if the person is in a ward that is wholly set aside for the treatment of persons with a mental illness, will be taken to be a death in custody.

The circumstance that I am advised this deals with is to relieve, essentially, the obligation to hold an inquest as a death in custody if, for example, someone is being treated for cancer and the medication or treatment has an affect which means they are suffering from signs of mental illness as symptoms. They may need some assistance to deal with that but do not have a systemic mental health issue or historical problem in that regard.

So, if they are being treated, they may be in a hospital that provides some mental health support but is not a facility wholly set aside for the treatment of persons with a mental illness. This will provide some relief in respect of the inquest relating to a death in custody. It does not in any way otherwise diminish the obligation in respect of inquests for deaths in custody as defined within the present legislation.

The second area deals with the question of penalty privilege. This privilege is not, probably until recently, well known in the sense of public understanding. I think some people hear the terms but perhaps do not always understand what 'legal professional privilege' or 'parliamentary privilege' mean. They are perhaps better known than 'penalty privilege'.

If you were to ask someone what they understood about the right not to answer questions if it might incriminate them in giving those answers, that would enable them to say, 'I decline to answer that question on the grounds that it might incriminate me.' That is, they may face prosecution, if they do not answer, in a criminal sense. There are also aspects relating that to a civil penalty.

Penalty privilege is a privilege which is largely one which relates to the opportunity to decline to answer questions or provide information which might have the potential to bring that person into reference of having to be disciplined for some misconduct, so it is more related to someone who declines to answer just in case it might offend some of their standards in respect of conduct and for which they might receive some punishment.

I have tried to in some way give an example of this. For example, a police officer may say, 'Well, I'm not going to answer questions of an inquiry on the grounds that this might be perceived to bring me into the spotlight of not complying with the standards expected in respect of my duties as a police officer and I might be the subject of some disciplinary action, so I'm not going to answer the question.' I am trying to give real-life examples of where this might apply.

These are all important privileges, and this bill is one which is proposing to set out a process that will balance the need of the Coroner to get to the sufficient amount of evidence to make a determination as to the cause of death and, under our act, to be able to give recommendations if he or she sees fit, and also ensure that the witness who may be called upon to provide that information will have their own protection.

The proposal therefore in this second way is to amend the Coroners Act 2003 to change the way in which the privilege against self-incrimination and penalty privilege operate in a coronial jurisdiction. It also introduces an amendment to remove the requirement to hold mandatory inquests in the terms I have previously said, where that person dies of natural causes but is under a mental health inpatient treatment order outside that psychiatric ward setting.

Let me go back to the question of privilege and, in particular, penalty privilege. Currently, section 23(5)(a) of the Coroners Act deals with the privilege against self-incrimination and provides that a person is not required to answer a question if the answer would tend to incriminate the person of a criminal offence. Penalty privilege operates in a slightly different way and applies where a witness may decline to answer a question on the basis that it may expose them to a penalty (including a penalty in their employment).

Penalty privilege is available to both natural persons and corporations. The recent Supreme Court case of Bell and Ors v Deputy State Coroner and Ors (SCCIV-19-703) highlighted the present legislative uncertainty regarding penalty privilege in the coronial jurisdiction. It was held in the Bell case that because the Coroners Act does not expressly exclude the operation of penalty privilege it is therefore available to witnesses.

It had been previously assumed by those practising in the coronial jurisdiction that penalty privilege was not available to witnesses giving evidence in coronial inquests. It follows, therefore, that the Bell decision has significantly altered this widespread perception of the application of this type of privilege. Without addressing this issue legislatively, there is a real risk that the Coroner will not be able to conduct full and thorough inquests or be able to obtain the information from witnesses that is necessary.

The amendments contained in the bill will also bring the South Australian Coroners Act more closely into line with other jurisdictions. All other Australian jurisdictions have provisions that allow the Coroner to require that a witness answer a question even if the evidence would tend to incriminate the person or expose them to a penalty. Western Australia, New South Wales, Victoria and the Australian Capital Territory and the Northern Territory employ a certificate-style system whereby the Coroner issues a certificate to the witness in respect of the relevant incriminating evidence, certifying that it cannot be used in other later proceedings.

The provisions in this bill will implement a certificate system that is very similar to one used in those jurisdictions. My department and those exceptionally intelligent people in it, particularly in Legislative Services, have looked at other models but, on recommendation, I considered the different models and I also sought the valuable advice of the Coroner in these matters. In short, in the end the certificate model is the one we are advancing in this bill.

The provisions in the bill deal with both the privilege against self-incrimination and penalty privilege in the same way and allow the State Coroner to require the witness to answer a question if it is in the interests of justice, even where the answer tends to incriminate them or expose them to a penalty. The Coroner will then issue a certificate in respect of that evidence, and the evidence will not be able to be used against that witness in any other proceedings, including civil proceedings. The only exception to this is in criminal proceedings in relation to the falsity of that evidence.

These amendments will help to improve the quality of evidence that the Coroner is able to obtain during inquests and reflects a sensible and balanced approach, I suggest, by the government to the issues that have recently arisen within the jurisdiction. In relation to the matters as to the definition of death in custody relating to the other amendments I will add the legislative framework of that, if I may.

Currently, where there is a death that falls within the definition of death in custody, section 21 of the Coroners Act provides that an inquest must be held. However, section 76A of the Guardianship and Administration Act 1993 provides that the death of a person from natural causes who is subject to an order under section 32(1)(b) of the Guardianship and Administration Act is not taken to be a death in custody for the purpose of the Coroners Act. The Coroner can still decide to hold an inquest if it is considered necessary or desirable or, indeed, if it is a direction by the Attorney-General.

The bill removes this provision from the Guardianship and Administration Act and inserts it into the Coroners Act for practicality and ease of use. The bill also inserts a provision in the same terms as section 76A but applies it to the death of persons from natural causes who are subject to an inpatient treatment order under part 5 of the Mental Health Act 2009. An inquest will no longer be mandatory in those circumstances but can, of course, still occur where the Coroner believes it is necessary or desirable.

Notably, this will only apply to deaths from natural causes in persons who are subject to an inpatient treatment order that occurred outside a psychiatric ward. Deaths occurring within a psychiatric ward setting will still require a mandatory inquest. The amendment will not only help preserve the resources of both the South Australian police and the Coroners Court by reducing the number of unnecessary inquests but, more importantly, it will mean that the families and loved ones of those deceased persons will not have to go through the lengthy and often traumatic process of an inquest.

The Coroner undertakes an extremely difficult yet vital role within our justice system. The Marshall Liberal government is pleased to introduce the bill which will give the Coroner stronger powers to aid investigations and ensure that inquests can continue to run in a smooth but fair way. I commend the bill to the house. I wish to conclude by recording here in parliament my appreciation to both the Coroner, Mr David Whittle, and his team for the extra work and risks they undertook in the provision of service during the COVID pandemic.

It is not really easy to predict what services will be required, but one of the initiatives that has been taken up with Dr John Brayley, who of course represents us as our leader in mental health, is that there is a register kept of all deaths of suspected suicide. There is regular provision of this information to the Department for Health, to Dr John Brayley, so that we might monitor if there are any indications of people who might be falling under the difficulties experienced under the COVID circumstances.

To date, I am advised—and the Premier, cabinet and I are regularly kept informed on these matters—that there has not been any noticeable increase or identified cause of people committing suicide. This data does not incorporate those who might attempt suicide because the Coroner, of course, is only looking at those who die. South Australia experiences, on average, about 200 known suicides every year. There is always a question mark over some of the road deaths, particularly where there is only one vehicle involved and sometimes a tree or a cliff. It is a difficult subject, but it is one of the things that during COVID we, in the government, need to be very mindful of and ensure that we do everything we possibly can to get people through this.

Also, the Chief Magistrate has utilised some of the services of her magistrates, who are all deputy coroners, to be available to assist in a backlog of work in the Coroners Court, which had grown over a number of years and in which they were able to assist while working in an A team, B team, some at home, some in the courts, to actually undertake some of that work and to clear some of the backlog.

Thirdly, with the initiative of introducing the new CT scanner at Forensic Science SA, which I have referred to otherwise in the parliament, the reduction in the number of post-mortems required has therefore reduced the delay and provided a prompt report for the purposes of coronial assessment. These are all things that dovetail into making the work of both the courts and, in particular, the Coroners Court better, but on top of that, of course, they have had to deal with these extra matters surrounding COVID.

I think it is important that I place on the record my appreciation for this because, for example, something I did not know and perhaps other members did not know is that the COVID virus is something that, even after death, apparently can survive for a period of time. So, when our staff, working in the Coroners Court or in forensics and dealing with post-mortem issues, undertake a post-mortem, it is very important during COVID to make sure they are properly protected so that any escape of the virus from the deceased does not cause other problems. You learn all sorts of new things in these circumstances.

I am sure the member for Newland knows about all these things because he is a scientist and he understands them. Whilst it is fascinating, it is still important to acknowledge the hard work of these agencies and the Coroner, in particular. I commend the bill to members and seek leave to have the explanation of clauses inserted in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Coroners Act 2003

4—Amendment of section 3—Interpretation

The definition of reportable death is amended to include the death of a patient in an approved treatment centre under the Mental Health Act 2009.

5—Amendment of section 21—Holding of inquests

This clause includes in the circumstances in which an inquest is to be held if the Coroner considers it necessary or desirable to do so, or at the direction of the Attorney-General, those circumstances in which a person is subject to a detention order under the Guardianship and Administration Act 1993 and in which a person is subject to an inpatient treatment order under the Mental Health Act 2009 if the person is in a ward that is not wholly set aside for the treatment of persons with a mental illness.

It also clarifies that a death in such circumstances will not be taken to be a death in custody and that the death of a person while subject to an inpatient treatment order under the Mental Health Act 2009 if the person is in a ward that is wholly set aside for the treatment of persons with a mental illness will be taken to be a death in custody (and in relation to which an inquest must therefore be held).

6—Amendment of section 23—Proceedings on inquests

This clause makes an amendment consequential to the insertion of section 23A and removes from section 23 the provision that a person is not required to answer a question, or to produce a record or document, if the answer or contents would tend to incriminate the person of an offence.

7—Insertion of section 23A

Section 23A is inserted:

23A—Privilege in respect of self-incrimination and penalty

This section allows the Court to determine the reasonableness of an objection of a person at an inquest to answering a question, or producing a record or document, on the ground that it may tend to incriminate the person (being a natural person) or make the person liable to a penalty.

The Court may require the person to answer the question, or produce the record or document, if the potential incrimination or liability to penalty is not in respect of a foreign law and it is in the interests of justice.

The Court may, if it requires a person to answer or produce the record or document or if the person answers or produces the record or document willingly, issue a certificate to the person which has the effect of prohibiting the answer, record or document in respect of which the certificate is given (as well as derivative evidence) from being used against the person in proceedings, except in a criminal proceeding in respect of the falsity of the answer, record or document.

Schedule 1—Related amendment and transitional provision

Part 1—Amendment of Guardianship and Administration Act 1993

1—Repeal of section 76A

The provision relating to the holding of an inquest in relation to the death of a person while under a detention order is repealed. This is consequential to the amendments to section 21 at clause 5 of this measure which includes reference to detention orders under the Guardianship and Administration Act 1993 in that section.

Part 2—Transitional provision

2—Transitional provision

This clause provides for a transitional provision in respect of the application of the amendments to section 23 of the Coroners Act 2003 and the insertion of section 23A, to the effect that these amendments only apply in relation to inquests commenced after the commencement of the amending sections (regardless of whether the event that is the subject matter of the inquest occurred before or after that commencement).

Debate adjourned on motion of Mr Hughes.