Bills

Coroners (Inquests and Privilege) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 14 October 2020.)

Mr PICTON (Kaurna) (11:03): I am impressed at the activity going on in the house at the moment in replacing all the Notice Papers, let me add, on the basis of that motion. I rise to speak in relation to the Coroners (Inquests and Privilege) Amendment Bill 2020. This is obviously a very important piece of legislation. Any piece of legislation regarding the Coroners Act is important because the Coroners Court plays such a central role in determination and plays a particular investigative role in making sure that we prevent the deaths of people in the future, that every time a death of a particular type happens in South Australia we can learn from that, we can take action and there is public accountability in terms of investigating that.

We as the parliament receive particular reports and the public sees reports in terms of the deaths that occur. I think this has been a very important part of our judicial system, particularly when you speak to families who have lost loved ones, sometimes in very serious or unexplained circumstances, as I do now particularly in relation to my role as the shadow health minister.

The SPEAKER: The member for Kaurna might indicate if he is the lead speaker.

Mr PICTON: Sorry, Mr Speaker, I am the lead speaker for the opposition under the standing orders. This is something where those families particularly seek—I would not say comfort—to make sure they get an investigation by the Coroner into the cause of death to make sure not only that they derive some closure for what has happened to their loved one but also that the state can learn lessons and make sure that whatever happened is not repeated. Unfortunately, sometimes there will be people who will need to be held to account for what happened, if they were involved in potentially causing a death, and obviously there are occasions when it leads to other investigations or other prosecutions that stem from a Coroner's inquiry.

This is something where I know the Attorney, in her previous role as the shadow attorney-general, regularly brought matters to the parliament when she believed that Coroner's inquiries should be taking place and she asked the government to take action to instruct the Coroner to undertake particular inquiries in relation to those matters. I presume that was on the basis of the former shadow attorney-general the member for Bragg receiving representations from those families who were concerned as to whether Coroner's inquiries were taking place or not.

I will be interested to hear from the Attorney, during the course of the debate and the committee stage, as to whether there have been occasions, now that she is the Attorney-General herself, when she has used that power under the legislation to instruct the Coroner to undertake inquiries in relation to particular matters or whether that was just something she did in opposition and asked the government to do that she is not doing now in government.

This bill seeks to amend the Coroners Act 2003 and make related amendment to the Guardianship and Administration Act 1993 and there are two key things that this seeks to achieve: (1) amend the definition of a 'reportable death' and the circumstances in which a coronial inquest must be held for a death in custody and (2) address penalty privilege for witnesses in the coronial jurisdiction.

In relation to reportable deaths and deaths in custody, the Coroners Act currently defines a range of circumstances that are deemed reportable deaths where the Coroner must be notified. In section 3 of the current act, reportable deaths include circumstances such as deaths in custody and unexpected, unnatural or violent deaths.

Referring to those deaths, in relation to the interpretation section of the current act, there are a number of particular matters, including home detention, evading apprehension and escaping or attempting to escape from any particular place. I also understand it involves deaths in an aircraft during flight, death of a person under the Children and Young People (Safety) Act 2017 or a protected person under the Guardianship and Administration Act. In any of these circumstances, the Coroner may decide to undertake an inquest or, as I mentioned before, the Attorney-General has the power to direct the Coroner to do so.

The Coroners Act further outlines circumstances in which the Coroner must undertake an inquest, and this includes deaths in custody, as required under section 21. I refer to the current section 21 and in particular subsection (1)(b), which states that, if the Coroner thinks it is 'necessary or desirable' to hold an inquest, or if the Attorney-General directs the Coroner, they can hold inquests in relation to other cases. Section 21 provides:

(1) The Coroner's Court must hold an inquest to ascertain the cause or circumstances of the following events:

(a) a death in custody;

(b) if the state Coroner considers it necessary or desirable to do so, or the Attorney-General so directs—

(i) any other reportable death or a death that would, but for section 3(2), have been a reportable death; or

(ii) the disappearance from any place of a person ordinarily resident in the State; or

(iii) the disappearance from, or within, the State of any person; or

(iv) a fire or accident that causes injury to person or property;

(c) any other event if so required under some other Act.

These cases, as I said, can include events such as fire or accidents that result in injuries or fatalities.

With regard to deaths in custody, these extend well beyond people who are in prison. Obviously, we normally think of somebody in custody in relation to the corrections system or the youth justice system. It is fair to say, I believe, that a large number of those deaths in custody cases that the Coroner sees are in relation to the corrections system. However, there are a large number that relate to other areas in which the state has people in custody, namely, in particular, the mental health system. So they extend well beyond prison and include those who may be temporarily detained by the police or who are detained under other arrangements.

This bill seeks to clarify the arrangements that apply for people who die under the mental health or guardianship orders. Specifically, the bill amends the definition of 'reportable death' in section 3 of the Coroners Act to include the death of a patient in an approved treatment centre under the Mental Health Act 2009. This is a minor change, noting that the current Coroners Act refers to the Mental Health Act 1993, which has since been repealed a good 11 years ago, so I am not sure how that one did not get picked up until now.

The bill then goes on to amend section 21 to clarify circumstances where the Coroner may hold inquests if they deem it necessary and desirable. Those circumstances include where a person dies from natural causes while subject to an order under the Guardianship and Administration Act 1993. Further, these circumstances include where a person dies under a Mental Health Act order but this happens in the ward of a hospital that is not exclusively set aside for mental health treatment, which I think is an important point that I will get to in a second.

The bill also adds new subsections (4) to (6) to section 21. Subsection (4) outlines that a death by natural causes of a person subject to an inpatient treatment order under the Mental Health Act and held in a ward of an approved treatment centre where the ward is set aside for people with mental illnesses is to be taken to be a death in custody, which, as I understand, would be relevant to the status quo.

Subsection (5) states that death by natural causes of persons subject to an order under the Guardianship and Administration Act 1993 will not automatically be a death in custody, but the Coroner may still undertake an inquest if they deem it necessary. Subsection (5), importantly, also clarifies that the death by natural causes of a person subject to an inpatient treatment order under the Mental Health Act, and held in a ward or an approved treatment centre where the ward, importantly, is not set aside for people with mental illnesses, is not to be taken to be a death in custody.

That is an important point because there are many people in our health system under inpatient treatment orders in relation to the Mental Health Act who are in places that are specifically not set aside for people with mental illnesses. This could include many numbers of wards in our hospital system. This could include emergency departments and, in particular, what we have seen over the past two years has been a quite significant increase in the number of people who have mental illness who are subject to orders within our health system, who have been kept in emergency departments for a very significant period of time.

The number of people who are in that situation, waiting for a specific mental health care bed in our emergency departments, and who have been waiting there for longer than 24 hours, has risen dramatically over the past two years since the government was elected. It has risen to very worrying levels, where it has been often referred to by people, including the Chief Psychiatrist, as human rights abuses. I believe it was only a month or so ago when a case was revealed about somebody who had been held in an emergency department for over 100 hours in that facility, which I think is shocking by anybody's definition.

If you compare our position with that of other states', and in particular look at New South Wales in relation to the way that mental health patients are treated in emergency departments, that is a very significant departure from practice in other states. It is not only clearly detrimental to the health and wellbeing of that person but it is also awful for the staff who have to look after that patient in very less than adequate situations. Clearly, in an emergency department, the lights, the noise and the commotion that would occur in a 24-hour-a-day emergency department would be very detrimental to those people.

We will tease out in the committee stage the definition of a place that is set aside for people with mental illnesses. I will be interested to see if the Attorney can clarify whether that is going to include emergency departments as places that are apparently set aside for people with mental illness. If it does, is it just some parts of those emergency departments or is it all of the emergency department?

I also question whether this would include the definition of people who are held in ambulances. Obviously, we know that our paramedics are on the front line and they have to respond to these cases. Sometimes they end up with these patients for longer than needed because we have very significant ramping issues going on in our emergency departments at the moment, and paramedics are unable to deliver those patients, to transfer those patients, to the emergency department in a timely way.

We also know that there are times when people with mental illness subject to orders will be in a different ward due to capacity constraints in the hospital system. Clearly, you are going to increase the risk if you put somebody in a different area where they do not have the proper mental health training and the proper mental health administration. They are still subject to an order but they are somewhere else in the hospital. Based on this, from what I can gather from what the Attorney is trying to do, it would seem to set them apart as that is not set aside for mental illnesses and is therefore not taken to be a death in custody, even though that person would be subject to an order and therefore would have to be subject to being in that centre.

I am very keen, as we get through the committee stage here, to clarify exactly what is meant in relation to this. Who are the people and what are the situations in which the Attorney-General is seeking to avoid having been declared a mental health patient? It might well be that because, say, for example, the Flinders Medical Centre would be a centre in which mental health care is defined, the entirety of Flinders Medical Centre would be defined as a place that is set aside for people with mental illnesses.

If that is the case, what are the situations in which we are trying to exclude somebody? Is it in relation to a small country hospital where an order would take place but they did not have the mental health services? Is it in relation to an ambulance? Is it in relation to some other element of the health system that we are trying to exclude here? What is the rationale for trying to exclude that and not then have something that is referred to the Coroner? I think that is an important point because if you are not in an area where you have that mental health support then clearly you are subject to a higher level of risk than otherwise might be the case.

Subsection (6) simply updates definitions to align with the Mental Health Act 2009. The bill also repeals section 76A of the Guardianship and Administration Act 1993 to align with the aforementioned changes regarding death by natural causes. The bill's amendments to section 21 are intended to avoid unnecessary inquests, along with the consequent cost to government and the delays to families. I think it would be important to hear some examples of those sorts of cases, where there have been unnecessary inquests.

What we have been told by the Attorney's office is that this may involve a person who is treated for cancer under a mental health order but dies from cancer in a cancer ward. Clearly, I would have thought those situations were relatively rare of people—not just somebody who has a mental health condition which we obviously know is very significant—who are subject to an order of detention under the Mental Health Act but are dying from something else somewhere else in the hospital and why that would not be considered as something that should be investigated. What we are also told by the Attorney's office is that, removing the obligation to undertake an inquest, the Coroner must investigate such deaths to view whether it is necessary or desirable.

The other major element in relation to this is penalty privilege in the Coroners Court. Penalty privilege is often thought of as protecting a person from giving self-incriminating evidence, but it does go further than that. It also covers giving evidence that could expose a person to civil penalties or workplace disciplinary proceedings. It was thought that penalty privilege was a settled matter under law, but that assumption was overturned in a recent Supreme Court case. The issue arose from the tragic death in custody of a 29-year-old Aboriginal man, Wayne Morrison, in 2016.

Mr Morrison was found unresponsive in a prison van in Yatala and later died in hospital. In the Coroner's inquest, 19 staff witnesses refused to answer questions from the Coroner, claiming penalty privilege. They claimed that penalty privilege protected them from giving evidence that could incriminate them in criminal law, subject them to civil penalty or make them liable to workplace penalties, such as disciplinary action by their employer.

The claim was challenged in the Supreme Court in the case of Bell v Deputy Coroner. In Bell, the Supreme Court upheld the claim of penalty privilege by reasoning that the Coroner is unable to make findings or suggestions of criminal or civil liability under section 25(3) of the Coroners Act. Looking at another judgement by Justice Blue, he says, and I quote:

Turning to the evident purpose of section 23, there is nothing in its evident purpose that demonstrates a necessary intention that common law 'personal' privileges be abrogated. The evident purpose of subsection 23(5) in relation to self-incrimination and legal professional privilege is to address specifically two grounds not to answer a question or produce a document that are likely to apply in many inquests.

It goes on to say:

The State contends that penalty privilege has a lower status and its subject matter involves lesser consequences than self-incrimination privilege. However, self-incrimination privilege applies to all offences, regardless of penalty. It applies to offences for which a fine is the only penalty. It applies for example to traffic offences. A penalty subject of penalty privilege may have far greater consequences, such as dismissal from office, than the penalty imposed for an offence protected by a self-incrimination privilege.

The State points to the nature of the jurisdiction of the Court, which does not involve the adjudication of rights and liabilities such as is undertaken by courts of general jurisdiction. This is not a factor that points towards abrogation of common law privileges.

The State points to the function of the Court in making findings of cause and circumstances of the event the subject of the inquest and making any recommendation that might prevent or reduce the likelihood of a recurrence of a similar event, which serves a different public function from the adjudication of rights and liabilities. This may be accepted. However, courts of general jurisdiction also from time to time hear litigation which primarily serves the public interest rather than the determination of private rights and obligations.

More importantly, if the public interest in preventing or reducing the likelihood of the recurrence in future of events the subject of inquests were to be regarded as paramount over the interests of an individual in claiming privilege, Parliament would have required answers to questions and production of documents regardless of self-incrimination, probably coupled with a provision that the evidence could not be used in other proceedings. It was readily foreseeable by Parliament when enacting the Act that the privilege against self-incrimination was likely to arise in relation to the investigation of deaths and indeed more likely to be critical to findings made by a coroner than penalty privilege.

The Coroner advanced as a reason in support of the construction she adopted of the Act that, if penalty privilege were available, the work of the Court would 'grind to a halt'. There is no basis for such an assessment, or to impute to Parliament that it silently made such an assessment. The availability of self-incrimination privilege is much more likely in a practical sense to impact the ability of the Court to ascertain the cause and circumstances of a death. It will be comparatively rare for a witness to be able to rely on penalty privilege as a reason for not answering questions directed to events occurring before or up to a death. Indeed, this is exemplified in the present case where no witness at the inquest relied on penalty privilege for not answering a question relating to the incidents involving Mr Morrison from the time when Mr Radford opened the door to cell 5 to the time when Mr Morrison was taken to the Royal Adelaide Hospital by ambulance. To the extent that penalty privilege was raised at all (and this is addressed in detail below), it was raised exclusively in relation to post-incident events, which themselves necessarily have only an incidental, and secondary, relevance to the cause and circumstances of Mr Morrison's death.

In conclusion, section 23 does not abrogate common law penalty privilege. It was and is available to a witness at the inquest as a ground for declining to answer a question or produce a document, provided that the witness has claimed and established an entitlement to the privilege in answer to a specific question or request for production of a specific document.

That clearly sets out the view of the court in relation to this matter. Particularly now, being involved in the parliament, I always take it with a slight grain of salt when eminent jurists such as Justice Blue infer that parliament has always thought through all these things perfectly in their judgements.

Now, seeing how the sausage is made, sometimes that is not necessarily always the case. Clearly, we have a situation here where, now that this determination has been made by the Supreme Court against what the proposition put by the state and no doubt supported by the Attorney was, there is a move from the Attorney to remedy this in legislation, which clearly was thought previously by the parliament not to be the case.

This bill seeks to override the use of penalty privilege in the Coroners Act by proposing to insert new section 23A into the Coroners Act. Section 23A relates to privilege in respect of self-incrimination and penalty and clearly addresses the Bell case and the Morrison inquest. The main impact of this amendment is that the Coroner can issue a certificate that prevents evidence from being used in other proceedings. This is consistent with how other jurisdictions treat issues of penalty privilege, or privilege against self-incrimination, in the Coroners Court.

New section 23A would allow the Coroners Court to determine, firstly, the reasonableness of an objection to answering a question or producing a record or document raised by a person at an inquest, on the grounds that it may tend to incriminate them or make them liable to a penalty in the workplace or under Australian or foreign law. The bill provides that the Coroners Court may require that person to answer the question or produce the record or document if the potential incrimination is in the interests of justice.

The bill also provides that this court may issue a certificate to the person, both when the court requires them to answer a question or produce the relevant record or document or if a person willingly answers this question or request. The bill provides that this certificate will prohibit the relevant answer, record, or document and derivative evidence from being used against the person in the proceedings. There is one exception: that is, in relation to criminal proceedings about the falsity of any answer, record or document provided in the coronial inquest, the witness may not be protected.

Addressing the operation of penalty privilege, we are told by the Attorney, is essential to ensure the Coroner is able to properly ascertain the cause and circumstances of death through an inquest. By finding an accurate cause and circumstances, it follows that the Coroner should be able to get accurately to the bottom of key issues. The court would, therefore, be better informed and equipped to make more detailed findings or recommendations that will fight to prevent any similar chain of events, and dire consequences, in the future. This goes to the heart of the importance of the Coroners Court, the importance of getting that full inquest and full evidence on the table.

An important part of ensuring the Coroner has access to truth, transparency and the facts surrounding any death in custody is ensuring that there are accurate protections in place for witnesses who are called to give evidence to the Coroner. A similar issue was debated in this place regarding public hearings by the ICAC. Whilst on the one hand we need transparency, we also need to ensure natural justice where public hearings are combined with compulsion.

This was an issue that was dealt with by the Legislative Council previously in relation to the ICAC legislation and, as I understand it, it is still being debated through the parliament. I refer to what the shadow attorney-general, the Hon. Kyam Maher, said in relation to that:

The opposition has lodged a set of amendments to this bill that further incorporate recommendations of that committee that were not in the second bill introduced by the government and that also incorporate other amendments, some of which were suggested by witnesses to that committee, including the Law Society, and others were suggested by groups such as the Bar Association.

In essence, a lot of the amendments seek to treat a hearing, if it is a public hearing, as much more akin to a trial where a defendant is before the public eye and receiving publicity about the proceedings that are occurring. Pursuant to the opposition amendments, a number of things would come into play if a public hearing is called. This would include: the rules of evidence applying to hearings; a witness being entitled to call other witnesses and make submissions; a witness having a right to refuse to participate in an investigation; a person having a right to cross-examine witnesses; that the summons must set out why a person is being summoned; if a public hearing is to be held, that the commissioner must head that public inquiry; that an examiner appointed by the commission must be a legal practitioner; and that the commissioner must decide whether or not to make an inquiry public before witnesses have been examined.

Should the commissioner return a public hearing to a private hearing or return parts of it to a private hearing then all the rules that apply to a public hearing continue to apply to those parts that then go back into a private hearing. A legal practitioner can represent a person at other examinations forming part of an inquiry. A person is to be told if allegations of misconduct or maladministration have been made against them, and a disclosure statement to provide additional details is to be supplied before such appearances.

In our suite of amendments there are a range of things that we think create more fairness should a public hearing be decided upon by the commissioner.

Clearly, we have in relation to—

The Hon. V.A. CHAPMAN: Point of order.

The SPEAKER: The member for Kaurna will resume his seat. The Attorney on a point of order.

The Hon. V.A. CHAPMAN: I think the member is offending the rules as to the question of reflecting on a vote. This is an entirely different debate in relation to whether ICAC hearings should be public or not. It is nothing to do with the matter that is before the house now that relates to the rules that are applied to the Coroners Court. So on the question of relevance, I ask that the member be brought back to the relevance of the debate.

Mr PICTON: A point of order on the point of order.

The SPEAKER: On the point of order, the member for Kaurna.

Mr PICTON: This is clearly an issue where we are seeking to make sure that there are protections in place in relation to moves by the government to make sure that people are compelled to give evidence, and I was referring to one situation where we have pursued that in the parliament previously. I think it is entirely germane to the debate about people being compelled to give evidence to refer to another example of that occurring.

The SPEAKER: I have the point of order. The member for Kaurna is reflecting on clause 7 of the bill and I have been listening carefully to it. The member for Kaurna will remain germane to the bill, as he is required to do. The member for Kaurna has the call.

Mr PICTON: Thank you. I do not know who won that debate, but I will continue to be germane to the bill. As I said, this is an issue that has been debated in relation to ICAC. Clearly, that issue is still not entirely resolved but we do believe that, whilst we need transparency, we also need to ensure natural justice where public hearings are combined with compulsion. That is an approach we have taken in relation to the ICAC legislation, and we believe a similar approach needs to be considered by parliament in relation to this legislation: when requiring compulsion, natural justice needs to apply and there need to be protections for witnesses in those circumstances.

In relation to that, the opposition is therefore intending to draft amendments, to be introduced in the other place by the shadow attorney-general, that will ensure reasonable protections for people who are compelled to give evidence by the Coroner. Such protections are needed to ensure that witnesses are encouraged to come forward and are protected from reputational damage and criminal or other liability.

The opposition will be supporting the legislation through this house on that basis, but we do have a series of questions that we believe the Attorney needs to answer in relation to both elements of this legislation. We also believe there are additional protections that could be added to this legislation that we will be seeking to move in the other place. Clearly, in this house the government's decision carries the day, but we are hoping the other place will see the importance of some additional measures to ensure natural justice can occur while at the same time making sure we address the issues that have been raised in relation to the Morrison matter before the Supreme Court.

I am also aware that an amendment will be moved by the member for Mount Gambier. That is in relation to this matter as well, and deals with whether the court must consider whether it should make suppression orders in relation to those issues where there has been a compulsion to give evidence. On the face of it that is something we consider looks appropriate in the circumstances, and therefore we will be supporting it today and considering it fully between the houses before we get to the Legislative Council.

However, while this looks to be along the lines of what we are seeking to ensure, that there are protections in place on a natural justice basis, while we are increasing the compulsion powers of the Coroners Court—for very good reasons, to make sure we get the truth of matters where deaths have occurred—we also need to make sure we balance that out with protecting natural justice for those people who are witnesses. With those remarks, we will be supporting the legislation today but will be seeking to make amendments in the Legislative Council.

Mr BELL (Mount Gambier) (11:37): I rise to make a few comments on the bill and perhaps foreshadow some of my thinking around it. One of the disappointing things, or missed opportunities, in this bill is the requirement to report back to parliament. The Coroner can conduct an inquiry and make recommendations, but I would like to see some work done in relation to the obligation, from a parliamentary point of view, of adopting or not adopting or tabling those.

Of great concern to me is the part around compelling somebody to give evidence. I think it is really important that we thoroughly study what we are aiming to do here: when somebody's right, a common law right against self-incrimination, is going to be overturned or modified in some way, this parliament needs to have a serious debate and consideration of that. Common law has been around for 850 years—since 1066 roughly—and it has served us pretty well as a society. You can see that something written down very quickly here starts impeding on somebody's common law right, and if it is not drawn to the attention of people it could easily be missed.

I just want to quote a little bit from the Law Society, when they were asked to give feedback on this. This is a letter from the Law Society. They oppose the removing of the privilege against self-incrimination and make the following points:

The privilege against self-incrimination is 'a basic and substantive common law right, and not just a rule of evidence'. The privilege against self-incrimination is an element of the broader right to silence and reflects 'the long-standing antipathy of the common law to compulsory interrogations about criminal conduct'.

It continues:

While the Society does not support the abrogation of the privilege against self-incrimination, if this amendment is pursued, it is important that where self-incriminating evidence is compelled, it cannot be used against the witness in other criminal or civil proceedings. It is appropriate that this protection applies not just to evidence given by the person, but evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence. Although the provision of a certificate (as suggested) mitigates the abrogation of the privilege somewhat, the wavering of the privilege against self-incrimination can still be problematic and detrimental to a witness. The High Court has identified that indirect consequences can flow in a diffuse way that is not easy to predict when coercion is exercised upon a person in respect of their giving evidence. This can be relevant to both suspected persons' dignity and privacy but it can also impact upon their capacity to exercise forensic choices should charges later be preferred. The Society also has concerns that potentially if the privilege is abrogated, there may be a strong temptation for investigators to disguise use of any admissions made by the witness in order to build a case against him/her.

When we come to that part of the bill, I certainly have a number of questions around the determining aspects of that right to silence and also the compulsion to give evidence. But I also want to take it further, and that is why I will introduce an amendment. Whilst the Coroner collects this evidence and there is a protection through a certificate against criminal or civil proceedings, my concern is around what happens to that evidence.

The evidence is collected in a coerced way—the person is compelled, normally under threat of gaol or imprisonment and a substantial fine—but once that evidence is deployed in a court setting it is disclosed to the world at large. That may have some unintended consequences for the person who was forced to give up their right to silence, and unintended consequences not necessarily in a civil or immediate criminal way.

All my amendment seeks to do is that the court, when it is considering this aspect of abrogating somebody's right to silence and eroding a common law which has been around since 1066, must consider—it does not say it has to, but it must also consider—that deployment of information to the world at large, and it must consider whether it should make a suppression order under section 69A of the Evidence Act with respect to the information that has been gathered or the record or the document.

So it is trying to put some level of protection in, with the understanding that this is an extraordinary step to take and is circumventing a member of this state's, a member of the public's, right to silence. Of course, that is really borne out by the fact of a basic common law that the state must prove guilt beyond reasonable doubt. With those comments, I raise my interest in this bill and also, hopefully, assist in its construction.

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (11:45): I wish to acknowledge and thank members for their contribution and the indication from the opposition that they will be supporting the bill, subject to the consideration of some amendments that have not been outlined but may well be something that they wish to consider in another place.

I also thank the member for Mount Gambier for his contribution, identifying his concerns as to the application of any determination of how we are to deal with penalty privilege in the future and the model that is outlined in this bill, to the extent of the member foreshadowing an amendment to provide for a court considering ordering a suppression order in the event that they propose to demand an answer to a question or the production of documents; in other words, in addition to the certificate model, which I think is what is being acknowledged as acceptable, that there be automatic consideration of the order of suppression.

In relation to that matter—as the member for Kaurna has indicated, it may have some merit, and we will consider that between the houses—it may not be necessary. Nevertheless, I think I understand the member's motivation in seeking some clarification of that on the basis that the amendment is not demanding that there be a suppression order in the event of a certificate process operating but is requiring that the court consider whether it is appropriate to make a suppression order. They may do that in any event. It may not be a necessary prescription, but I think I understand the member's motivation in recommending it. I will not be consenting to it today, but we will have a look at that between the houses.

The member for Kaurna had raised other matters, and has done so during briefings provided on this bill, and I am happy to deal with the matters in committee to clarify any of those for which he seeks further information. To be absolutely clear, can I say that although at the time of introducing this bill I had outlined quite a bit more information on the proposed amendments than I had originally planned to do—I think I just did not have my notes with me at the time, so I spoke for the first five minutes—I thought I had made it very clear that parliamentary privilege and legal professional privilege were matters which were well known to the public, and I explained that a penalty privilege was not one that was perhaps as well understood or known about.

To be absolutely clear, in consideration of the bill that is before us I want to say that this bill sets up a model to amend the way in which a privilege against self-incrimination and penalty privilege operate in the coronial jurisdiction only. It does not make any change, attempt to impede or seek some restriction over the operation of legal professional privilege. Legal professional privilege is also well known and will remain available to all witnesses who decline to answer a question in a coronial jurisdiction on the ground of legal professional privilege. Just in case there was any scintilla of doubt in members' minds, I wish to make that absolutely clear.

Of course, although I have spoken about parliamentary privilege, and that is also a matter can be raised, I am not expecting it would be under any consideration here. What we are talking about in the Coroners Act is having a mechanism via a court in which coroners are asked to determine how someone has died and then also have the power to make recommendations. This is a role which has centuries of history and which, on my recollection of the legal history, was one of considerable power of the Coroner to actually undertake this important area of responsibility.

It should always be remembered that the Coroner's role here is not one confined to an investigation; it is a court that is sitting with specific areas of responsibility, and it has its own act and it has its own regime and areas of responsibility. It is very important that we get it right.

As members may or may not know, all our magistrates are also deputy coroners and they can be made available to undertake coronial work—indeed, in the case the member referred to, the Morrison coronial inquiry, Deputy Coroner Basheer was made available from the Magistrates Court to undertake that inquiry—and that has happened now over a couple years and is continuing. I do not need to say anything further about that, other than we have had quite a considerable period when extra money has been made available to ensure that the workload of the Coroners Court is supported to deal with protracted or complicated matters.

During the 2018-19 year, as has already been reported to parliament by Coroner Whittle, extra funding had been provided to resource the four complex inquests that were progressing during that year. That was the Wayne Fella Morrison death in custody, the Graziella Dailler and Dion Muir domestic violence matter, the Alexander Kuskoff police shooting case and also the Jorge Castillo-Riffo workplace death at the Royal Adelaide Hospital.

The member for Kaurna is quite right: I have asked a lot of questions about matters where people have died in South Australia, urging coronial inquest. On two of those cases, I have asked a number of questions in the parliament, including on the murder-suicide in the Graziella Dailler and Dion Muir case in Victor Harbor, which was a shocking case and on which the Coroner has now reported and provided a number of recommendations. But, in a climate of national attention on domestic violence, that was a case that demonstrated repeated occasions on which Ms Dailler was the victim of alleged domestic violence, she had sought protection of the police from time to time and sought injunctive relief by way of protection and, in the end, she was found shot, with Mr Muir then taking his own life.

The Castillo-Riffo case was well known over the last couple of years, and that determination has also been made. This is the situation where Mr Castillo-Riffo was on a scissor lift, operated on the Royal Adelaide Hospital site, from which he fell to his death. The tragedy of that case was only further expanded when a second death occurred at the Royal Adelaide Hospital, also on a scissor lift as I recall.

A new idea had been put in place to ensure the Castillo-Riffo case had lessons learned—that a second person be on the apparatus when in operation—only to find that it was being moved around the site and that the person who was to be keeping a lookout as such when they were moving, caused a second person to be tragically killed. Even with the best will in the world and with lessons learned, accidents can still happen and recommended action is not always watertight, but it is still important that it be undertaken. Again, this is an area of concern I have raised on many occasions in the parliament. The Kuskoff case has been concluded and, as I have indicated, the Morrison case is continuing.

The extraordinary events during the last financial year between March and the end of June, when we were all in COVID alert and action time, have precipitated, I report to the parliament, an opportunity—with all adversity there is often some advantage—and that is that magistrates became available when the Chief Magistrate operated her courts to ensure the public were protected by having an A team and a B team. The A team would be working in the courts doing their normal duties and the other group of magistrates would be working at home.

Again, this is just one of the many things that had to be done to accommodate the safety of, in that case, workplace lawyers, magistrates and, of course, parties and witnesses in proceedings of the Magistrates Court, which are very busy courts. It availed us of an opportunity where the Chief Magistrate agreed that some of the backlog of cases in the Coroners Court could be dealt with on the documents.

These are not full inquests, of course, but they are able to be received, reviewed, assessed and dealt with by the team that was at home, or at least some of them who agreed to undertake this work. I think the parliament should note how indebted we are to the Chief Magistrate, Judge Hribal, to accommodate a circumstance where we are all having to deal with the protection of safety and wellbeing of the community, but where we can utilise some services to assist in another, because there has been a disturbing backlog of coronial cases.

This was often a plea of former Coroner Mark Johns—that he needed more assistance to be able to progress important cases that were years in the waiting. I am pleased to say that the clearing of some of the backlog of inquests which had been reported on last year has again significantly reduced in the last 12 months, and there will be a full report to parliament shortly, and that is something that we are very pleased has occurred.

We are certainly hopeful that some of the work in relation to the second area of reform in this bill, which relates to removing the obligation for inquests to be heard in certain matters, will assist that because this has been an issue that has been raised with me by the Commissioner of Police. More recently, concerns have been raised as to how we might distinguish between patients in these circumstances where relief can be offered, where there is an unnecessary process being undertaken, and ensure that the Coroner retains at all times the right to conduct the inquests should he wish to do so or consider it appropriate in the circumstances. With those few words, I commend the bill to the house.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Mr PICTON: Just for something different, I ask the Attorney who she consulted in relation to the legislation and, in particular, were there any mental health stakeholders who were consulted by the government before this legislation was drafted?

The Hon. V.A. CHAPMAN: We will start with the Minister for Health and Wellbeing, of course, who has a very important role to play—and he indicated his support, recognising that deaths from natural causes inside psychiatric wards still have a mandatory inquest and the significance of that—the Crown Solicitor; the State Coroner, with whom I had several meetings; the Law Society of South Australia; the South Australian Bar Association; SAPOL; and the Office of the Chief Psychiatrist. Again, given the information in the question, he provided clarity that the distinction between deaths in psychiatric wards and outside psychiatric wards is due to particular vulnerabilities and historical poor treatment of those detained as inpatients.

For a person placed on ITOs outside of psych wards, often due to delirium due to other medical conditions, the primary concern is not the mental illness but the other physical illness. So the Chief Psychiatrist has outlined his reason for the distinction, and probably put it more eloquently than I had. Nevertheless, he has identified that. Of course, as you would expect, the Department for Correctional Services have also been consulted. In their contribution, cases have been referred to involving officers of the Department for Correctional Services. I just indicate that the Department for Correctional Services were supportive of the bill and made some other minor suggestions, which I think have been taken up.

Mr PICTON: From what I understand the Attorney said, it does not sound like any outside government mental health stakeholders were consulted or anybody with lived experience of mental illness. Was there any consultation with the ALRM in regard to the deaths of Aboriginal people in custody? Was there any regard to the recommendations of the Royal Commission into Aboriginal Deaths in Custody?

The Hon. V.A. CHAPMAN: I am advised that formally in relation to this bill they were not. I have certainly had a number of meetings with both the board and Ms Axelby, who is the Chief Executive of the ALRM, in relation to a number of matters relating to deaths in custody. Certainly there has been some conversation about this, but this bill does not deal with deaths in custody generally. We are not changing that, other than to deal with this area specifically in relation to the mental health aspect.

Mr PICTON: Lastly, can the Attorney outline (and she referenced in her summing-up speech some of the matters she has had regard to previously) how many times she has exercised her ability to order the Coroner to undertake an inquest and in relation to which matters?

The Hon. V.A. CHAPMAN: There is one very longstanding case that has been before the parliament on many occasions, of Mr Salvemini, and that was one on which I had asked the previous government to consider a direction. In fact, I asked them to do a number of things. I asked them to have a marine inquiry, which is very rarely held—in the last couple of hundred years I think there have only been several—but that is still a power that is available. They declined to have an assessment done by the then SafeWork SA executives dealing with matters arising out of that case—they did not do that. I asked them to consider a direction to the Coroner if that was necessary, and they did not do that.

The time that has elapsed since that tragic death, which was on a fishing boat, for the son of Mr Salvemini, who has been very distressed by this matter over at least a decade now, was such that, by the time we came to government—I spoke to the former Coroner, Mr Mark Johns, who had made it very clear that he did not consider that was appropriate—I looked at that matter, and it seemed clear from the further information we had that the likelihood of being able to even call primary evidence was really not a viable option, so that has not progressed. I have not in any other cases directed the Coroner to progress any other matter.

Clause passed.

Clause 2.

Mr PICTON: What is the government's intention in relation to when this would come into operation? Presumably it is the government's intention that this would pass through both houses before the end of the year. If that was to be the case, does the Attorney have a particular date in mind? How much notice would she give between its passing the parliament and its coming into operation?

The Hon. V.A. CHAPMAN: There is no proposed time frame. Obviously, we would be very pleased if the parliament did consider this legislation favourably before the end of the year. The implementation of this, though, would be in consultation with the Coroner and obviously the Crown, because they are significant parties, and probably SAPOL. Although they may be relieved of some of that work, the honourable member may be aware that there are a very large number of cases on which a particular unit within SAPOL undertakes a lot of the work for the Coroners Court in the investigative stage. I am hoping their workload might be relieved a bit, but they are a major player in the work of the Coroners Court and therefore I expect we would need to consult with them. I have to say—I will make this clear again, if it is not crystal clear—it is not intended that this legislation would be retrospective.

Clause passed.

Clause 3 passed.

Clause 4.

Mr PICTON: I am not sure why the Mental Health Act 1993 was not previously updated. I presume we do not know that. Have there been any issues with that act not being appropriately updated in relation to this act? Why are we retaining a reference to the repealed act through the legislation as well?

The Hon. V.A. CHAPMAN: Quite simply, that was parliamentary counsel's advice that we needed to do that. There may be other parts of it. I am not familiar immediately with what they are, but it was on their advice that we needed to keep that reference.

Clause passed.

New clause 4A.

Mr PICTON: I seek leave to move an amendment on behalf of the member for Mount Gambier.

Leave granted.

Mr PICTON: I move:

Amendment No 1 [Bell–1]—

Page 2, after line 14—Insert:

4A—Amendment of section 19—Inquests to be open

Section 19(2)—after 'may' insert:

, subject to section 23A(7a),

That obviously leads on to the addition of section 23A(7)(a), which would be the main amendment, but this is obviously reliant upon that.

The Hon. V.A. CHAPMAN: As indicated, although the notice of the amendment has only just been tabled today, we will of course consider whether that is something that is appropriate, and we may be able to, in consultation with the Coroner, identify fairly early. I do not know, given the late notice of this, as to whether this has even been applied in other jurisdictions around Australia. We have certificate model processes to deal with penalty privilege, but if it is a matter that can be accommodated, then of course we will look at it favourably.

New clause negatived.

Clause 5.

Mr PICTON: As I alluded to in my second reading speech, clearly the government is setting out a distinction between somebody who is subject to a mental health order but is in an approved mental health care facility—whether it be a psychiatric ward or something else—versus somebody who is not. I think that requires some description and explanation from the Attorney on a number of fronts.

One is: what is the distinction between them? Would an emergency department count? Does an ambulance count? Does another ward in a hospital count? Why is it that we are removing that they should be referred to the Coroner, given they are subject to orders that basically make sure they are subject to the state? Have there been many of these cases that have happened? What is the workload that would be eased for the Coroners Court in doing that?

As I said in my second reading speech, there is a concern that a large number of mental health patients and clients are in areas of hospitals, in areas of the health system that are not dedicated mental health facilities and are not dedicated mental health wards, and seeking to exclude them from being automatically referred to the Coroner seems to be a retraction of those protections for those people.

The Hon. V.A. CHAPMAN: Firstly, the Coroner has provided some information where he considers that it would be in numerical data that an amendment such as this would provide relief from having to have an inquest response; that is, it could be done by affidavit only. For example, in the 2013 to 2017 period, of the 81 ITO deaths at least a majority of 67 affidavit-only inquests into natural cause deaths would have been likely to be listed for an inquest but for the requirement to do so.

In short, 81 people in that time died under ITOs and on the basis that they had died of a natural cause—obviously, there may be many others under ITOs who died but not of a natural cause—then, of those, 67 could be, by this amendment, transferred to being provided an assessment by affidavit only, with the capacity, of course, for the Coroner to still investigate them and provide a full inquest inquiry on those areas.

The bigger question here is: what have they died of—that is, when assessed at the time, whether they have died of a natural cause or not. Just to be clear in relation to where they die, for example, if they are not in a psychiatric hospital, they may be in an emergency department, as you suggest. They may be in an ambulance that is in transit. It is expected that they would obviously have much more significant scrutiny because, at that stage, they may not have even been assessed by anyone as to what they have died of.

Of course, the courts need to be able to have the overriding scrutiny in relation to those. Clearly, if they have died in an emergency department or in an ambulance, they have not died in a psychiatric ward. But I think the Chief—

Mr Picton interjecting:

The Hon. V.A. CHAPMAN: No, the definition has to be in relation to whether a person who is under the ITO has died of natural causes and then there is a capacity for the Coroner to be relieved of the obligation to undertake a full inquest.

I think information has been provided to the member for Kaurna as to how we deal with the natural causes aspect. I am happy to put that on the record, if you wish. Essentially, the Chief Psychiatrist put this fairly clearly as to whether at the time of their being in custody as such, they are being treated for their psychiatric illness or they may have a condition which will produce a physical reason for their dying. The cancer example has been identified. If it assists, I will indicate here that the office of the Chief Psychiatrist reported as follows:

The reason for making a distinction is that people may be placed in ITOs when they are in wards that are not psychiatric wards due to delirium. This delirium could be secondary to advanced cancer (e.g. advanced lung cancer where a person often becomes hypoxic and agitated) or major surgery and there is a need for some sedation. The primary condition in this circumstance is cancer or problems arising from the surgery—not the mental illness. In this circumstance, it would not be appropriate to require an inquest. There is a higher probability of ongoing or recent medical review for these patients which is likely to provide more relevant information confirming death from natural causes or not.

On the flipside, to again use the example of the reference by the member for Kaurna, if someone who was the subject of an ITO obviously had some psychiatric illness and was presented at an emergency department and had any indication of self-harm or a drug overdose, then clearly this would be the information which might be relied upon if there was subsequently a death, even if it was by apparently natural causes as distinct from the intervention by the party which may have been as a result of them being under the duress of their own mental ill health. Those sorts of matters would not be ones that would automatically move off for consideration by affidavit.

The natural causes component is something which is complex to the extent that although the Chief Psychiatrist is saying in cases where it is clear—surgery, having a terminal illness, for example, having medication in relation to that—it is his view that we do not need to go through a full inquest in relation to those, so I hope that clarifies the matter. There is quite a bit of data in relation to what is a natural cause death, but I think that information has already been provided to you.

Mr PICTON: That does clarify some of it, but there remains the question as to why the government has gone down the path of making it reliant upon where physically the person is rather than what the treatment is that they are receiving. The Attorney uses a cancer ward as an example, but equally this is now knocking out the emergency department, where we know that mental health patients spend, sadly, a lot of time. It is knocking out ambulances and other elements apart from the specific treatment facilities that they should be receiving treatment in.

I wonder whether the Attorney has considered, or whether she would consider extending this definition under subsection (4), namely:

(b) held in a ward (however described) of a hospital or other facility that is an approved treatment centre under the Mental Health Act where the whole of the ward is set aside for treatment of persons with a mental illness,

This seems to be designed to knock out emergency departments because, as I understand it, emergency departments are approved treatment centres under the Mental Health Act 2009, but the whole of the ward is not set aside for the treatment of persons with mental illness. That last section of it seems designed to make sure that emergency department care would not be subject to review in this as opposed to cancer wards, etc., which obviously are focused on cancer. Why has the Attorney taken steps to knock out emergency departments and will she consider remedying that?

The Hon. V.A. CHAPMAN: I think that the member perhaps misunderstands. There is no change to the obligation with respect to that person who is in the emergency ward or in the ambulance if they die. It is still a reportable death, irrespective of whether there has been assessment at that time.

If this amendment goes through, it will allow for a circumstance where the Coroner is satisfied that there is (a) an ITO in existence so that it is reportable to the Coroner to give this assessment, and (b) if he is satisfied that it is of natural causes then he can be relieved of not progressing with that inquest. However, this is still a reportable death. It would be dealt with by a different process and it would save, on the data I have given you—16 or 17 inquests a year—which both SAPOL and the Coroner have recommended to us as being really unnecessary. It is a process which, of course, family members have to often deal with as well, so these are not pleasant exercises.

Where it is deemed to be a situation where, in a way, the ITO is almost irrelevant, say, if the person has died and they have died because they have had complications with surgery, is really nothing do with whether or not they have schizophrenia.

Clause passed.

Clause 6 passed.

Clause 7

Mr PICTON: Are we dealing with the amendment or the clause first?

The CHAIR: The amendment is consequential on the first amendment getting up, which it did not.

Mr PICTON: So the member cannot speak to it?

The CHAIR: Well, he can speak to it generally but we are not able to progress it, as I understand it.

Mr BELL: As outlined in the second reading speech, all we are looking to do here is really giving consideration on the gravity of a common law that has been around since 1066 and making sure that we have provisions in there around what you do once the evidence is actually gained in a compulsory manner, where someone's right to silence is abrogated, and making sure that is not just disclosed to the world per se.

In this amendment, all I am seeking to do is put a requirement on the court that, when it determines the reasonableness of the objection to a person who claims a right of silence, it must consider whether it should also make a suppression order under section 69A of the Evidence Act 1929 in respect of the answer, record or document that is compulsorily acquired. It is just to give a level of protection that that information is not disclosed to the world at large without some protection, where the court deems that it is fit to do so. I am not saying that it must do it but that it must give consideration to it.

The CHAIR: The member for Mount Gambier has spoken in general terms about his amendment. Given that it is consequential to new clause 4A getting up, I am happy to have that discussion. The Attorney looks to make some comments on that, I think.

The Hon. V.A. CHAPMAN: I very briefly indicate for the member's benefit that, as previously indicated in this debate, we will give consideration to the general principle of what is being proposed. There are two things, though, that we have been able to learn about. One is that the suppression proposal is not seen in other jurisdictions—perhaps they had already considered whether that was necessary or not. The other thing is this: if we were to apply this obligation every time there is a question or a document being asked to be provided—because this whole charter is not just professional privilege but also self-incrimination—then that may be a very onerous task for the Coroner to have to do each time there is a question asked in relation to that.

I will have a discussion with the Coroner about that, and we will consider it between the houses, but I am letting you know that it may just be something that is impractical.

Mr PICTON: Following on from the discussion, there may well be hearings that occur in open proceedings in the Coroners Court. What consideration has the government given to the concepts of natural justice, the rules of evidence and admissibility, procedural fairness and other protections for people who will be compelled by the Coroner to give evidence?

The Hon. V.A. CHAPMAN: I refer the member to new section 23A(4)(b), where the court may require a person to answer a question or produce a document if the court is satisfied. It provides:

(b) the interests of justice require that the person answer the question, or produce the record or document.

This is a model that codifies the very thing that you are discussing—that is, this question of balancing the public interest, being able to get answers to identify a cause of death and put recommendations, against an individual witness to the court being able to protect themselves against self-incrimination. The certificate process is seen as a model that is a bit more robust than if the Coroner just says, 'I accept this,' or not, and therefore there is not a clear, delineated circle around what is and what is not to be protected for use against someone in other proceedings.

But, in every other way, I remind the member that this is not just some inquiry. It is not a commission of inquiry and it is not an investigation. It is a court, and the court has its obligations in the general terms that you have raised.

Clause passed.

Schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (12:35): I move:

That this bill be now read a third time.

Bill read a third time and passed.