Coroners (Inquests and Privilege) Amendment Bill

Final Stages

The Legislative Council agreed to the bill with the amendments indicated by the following schedule, to which amendments the Legislative Council desires the concurrence of the House of Assembly:

No. 1. Clause 4, page 2, after line 14—Insert:

(2) Section 3—after subsection (2) insert:

(3) For the purposes of this Act, a reference to the circumstances of an event may be taken to include matters related to or arising out of the event or its aftermath.

No. 2. New clause, page 2, after line 14—After clause 4 insert:

4A—Amendment of section 13—Jurisdiction of Court

Section 13—after its present contents (now to be designated as subsection (1)) insert:

(2) In ascertaining the cause or circumstances of an event, the Coroner's Court is to promote the public interest in open justice which may include, without limitation—

(a) the public identification of a person, public sector agency or other organisation involved in the event, in particular in circumstances where it appears that such a person, agency or organisation caused or contributed to a death; or

(b) requiring a person, public sector agency or other organisation to provide information about and explain their action or inaction in the circumstances of the event; or

(c) assessing, subject to this Act, the accountability and responsibility of a person, public sector agency or other organisation involved in the event.

No. 3. New clause, page 2, after line 14—After clause 4 insert:

4B—Insertion of section 20A

After section 20 insert:

20A—Right of appearance for nominated representative of families

(1) This section applies to proceedings before the Coroner's Court relating to the death or disappearance of a person.

(2) Without limiting any other provision of this Act, the nominated representative of the family of a person to whom proceedings to which this section applies is entitled to appear in those proceedings and may examine and cross-examine any witness testifying in the proceedings.

(3) The reasonable legal costs of the nominated representative may be the subject of an application for legal assistance under the Legal Services Commission Act 1977 which is to be determined in accordance with that Act.

(4) For the purposes of this section, a reference to the nominated representative of a family will be taken to be a reference to a legal practitioner—

(a) engaged by or on behalf of the family to represent them in particular proceedings; and

(b) nominated, in accordance with any rules of the Court, by the family as their nominated representative.

(5) In this section—

Aboriginal or Torres Strait Islander person means a person who—

(a) is a descendant of the indigenous inhabitants of Australia or the Torres Strait Islands; and

(b) regards themself as Aboriginal or Torres Strait Islander or, if they are a child, is regarded as Aboriginal or Torres Strait Islander by at least 1 of their parents;

adult means a person of or over the age of 18;

domestic partner means a person who is a domestic partner within the meaning of the Family Relationships Act 1975, whether declared as such under that Act or not;

family, in relation to a person, means—

(a) the person's senior next of kin; and

(b) in relation to an Aboriginal or Torres Strait Islander person, includes any person held to be related to the person according to Aboriginal kinship rules, or Torres Strait Islander kinship rules, as the case may require;

parent of a child includes a guardian of the child;

senior next of kin for a deceased person or person who has disappeared means—

(a) the spouse or domestic partner of the person (and if the person had more than 1 spouse or domestic partner, the person's most recent spouse or domestic partner);

(b) if the person did not have a spouse or domestic partner or if they are not available—any adult child of the person;

(c) if the person did not have a spouse, domestic partner or adult child or if they are not available—a parent of the person;

(d) if the person did not have a spouse, domestic partner, adult child or living parent or if they are not available—any adult brother or sister of the person;

(e) if the person did not have a spouse, domestic partner, adult child, living parent or adult brother or sister or if they are not available—

(i) any person who is named as an executor in the person's will; or

(ii) any person who was the person's legal personal representative immediately before the person's death or disappearance;

spouse—a person is the spouse of another if they are legally married.

No. 4. New clause, page 6, after line 10—After clause 7 insert:

8—Amendment of section 25—Findings on inquests

(1) Section 25(2)—delete subsection (2) and substitute:

(2) The Court may add to its findings any recommendation that, in the opinion of the Court—

(a) might prevent, or reduce the likelihood of, a recurrence of an event similar to the event that was the subject of the inquest; or

(b) relates to a matter arising from the inquest, including (but not limited to) matters concerning—

(i) the quality of care, treatment and supervision of the dead person prior to death; and

(ii) public health or safety; and

(iii) the administration of justice,

and is, in the circumstances, an appropriate matter on which to make a recommendation.

(2) Section 25(4)(a)—after 'Attorney-General' insert:

and any relevant Minister other than the Attorney-General

(3) Section 25(4)(b)(i)—delete subparagraph (i)

(4) Section 25(5)—delete subsection (5) and substitute:

(5) Each relevant Minister must, within 8 sitting days of the expiration of 6 months after receipt of a copy of a recommendation resulting from an inquest—

(a) cause a report to be laid before each House of Parliament—

(i) giving details of any action taken or proposed to be taken in consequence of the recommendation; or

(ii) if no action has been taken or is proposed to be taken—giving reasons for not taking action or proposing to take action; and

(b) forward a copy of the report to the State Coroner.

(6) The State Coroner may, at any time after the provision of a report under subsection (5), request a supplementary report to be prepared by the Minister that addresses any matter that the State Coroner considers necessary arising out of the report.

(7) If the State Coroner makes a request under subsection (6), the Minister to whom the request was made must, within 8 sitting days of the expiration of 6 months after receiving the request—

(a) cause a supplementary report to be laid before each House of Parliament addressing the matters requested to be addressed by the State Coroner; and

(b) forward a copy of the supplementary report to the State Coroner.

(8) In this section—

relevant Minister, in relation to findings and recommendations of the Court, means—

(a) if a recommendation is directed to a Minister, or to an agency or other instrumentality of the Crown, as a result of the inquest—the Minister to whom, or the Minister responsible for the agency or other instrumentality of the Crown to which, the recommendation is directed; or

(b) in any other case—the Attorney-General.

No. 5. New clause, page 6, after line 10—After clause 7 insert:

9—Insertion of section 37A

After section 37 insert:

37A—Release of records to family when no inquest held

(1) Subject to this section, the State Coroner must, unless the State Coroner is satisfied that it is not in the interests of justice to do so, on application by the family of a person the subject of an event in relation to which the State Coroner determines an inquest is not to be held under this Act or an earlier enactment (whether the determination was made before or after the commencement of this section), provide to the applicant a copy of all records held by the State Coroner in respect of the event.

(2) An application may only be made under subsection (1) in respect of an event in relation to which the State Coroner determines an inquest is not to be held—

(a) if the event is a reportable death—after the expiration of 20 years following the making of a finding as to the cause of death or a finding that the death was due to undetermined natural causes; or

(b) in any other case—after the expiration of 20 years following the determination that an inquest is not to be held in relation to the event.

(3) The ability of a person to make an application under this section does not derogate from the ability of the person to make an application under section 37.

(4) For the avoidance of doubt, records that may be provided under subsection (1) include the following:

(a) material that was not taken or received in open court;

(b) a photograph, slide, film, video tape, audio tape or other form of recording from which a visual image or sound can be produced;

(c) material of a class that is prescribed by the regulations pursuant to section 37(2)(d).

(5) Material that has been suppressed from publication under this Act or any other Act (subject to that other Act) may only be provided under this section if the State Coroner is satisfied that it is in the interests of justice to do so.

(6) The State Coroner may provide a copy of records under this section subject to any condition the State Coroner considers appropriate, including a condition limiting the publication or use of the records.

(7) If a copy of a record to be released under this section identifies an individual, the State Coroner may redact or otherwise modify the copy of the record to the extent necessary to remove the identity of the individual from the copy if satisfied that the interests of justice require it in the circumstances of the particular case.

(8) The State Coroner may not charge a fee in relation to—

(a) an application for the provision of copies of records under this section; or

(b) the provision of copies of records under this section.

(9) In this section—

Aboriginal or Torres Strait Islander person means a person who—

(a) is a descendant of the indigenous inhabitants of Australia or the Torres Strait Islands; and

(b) regards themself as Aboriginal or Torres Strait Islander or, if they are a child, is regarded as Aboriginal or Torres Strait Islander by at least 1 of their parents;

adult means a person of or over the age of 18;

domestic partner means a person who is a domestic partner within the meaning of the Family Relationships Act 1975, whether declared as such under that Act or not;

earlier enactment means—

(a) the Coroners Act 1975; or

(b) the Coroners Act 1935; or

(c) any other Act or law of this State providing for the holding of an inquest into the death or disappearance of a person;

family, in relation to a person, means—

(a) the person's senior next of kin; and

(b) in relation to an Aboriginal or Torres Strait Islander person, includes any person held to be related to the person according to Aboriginal kinship rules, or Torres Strait Islander kinship rules, as the case may require;

parent of a child includes a guardian of the child;

senior next of kin for a person the subject of an event in relation to which the State Coroner determines an inquest is not to be held means—

(a) the spouse or domestic partner of the person (and if the person had more than 1 spouse or domestic partner, the person's most recent spouse or domestic partner);

(b) if the person did not have a spouse or domestic partner or if they are not available—any adult child of the person;

(c) if the person did not have a spouse, domestic partner or adult child or if they are not available—a parent of the person;

(d) if the person did not have a spouse, domestic partner, adult child or living parent or if they are not available—any adult brother or sister of the person;

(e) if the person did not have a spouse, domestic partner, adult child, living parent or adult brother or sister or if they are not available—

(i) any person who is named as an executor in the person's will; or

(ii) any person who was the person's legal personal representative immediately before the event in relation to which the State Coroner determines an inquest is not to be held;

spouse—a person is the spouse of another if they are legally married.

Consideration in committee.

The Hon. V.A. CHAPMAN: I move:

That the Legislative Council's amendments be agreed to.

In respect of the five amendments before us from the Legislative Council on the Coroners (Inquest and Privilege) Amendment Bill 2020, I indicate that the government will accept the amendments. They incorporate provisions by the Hon. Connie Bonaros in her attempt to support the accessibility of family members to inquest records, essentially after a 20-year period, arising out of inquests.

Whilst I am very pleased that the Coroner has exercised his discretion I think responsibly in respect of the access to records of family members in the past, perhaps this will not have any other work to do other than what is currently the position that that has been noted.

The Coroner did alert me to one item, suggesting that of the family members, the senior next of kin definition—for example, where it is a spouse or a domestic partner, and then it goes down in order then to an adult child of the person, etc.—if the spouse is still alive but perhaps has dementia, then it would not immediately allow the next party (that is, the adult child) to then apply. In any event, he has exercised his discretion in relation to the management of these matters, and in one case at least that is the situation that has arisen, and he has allowed them to inspect. So in some ways this might actually add to some impediment, but there is still sufficient discretion for him to act and he will no doubt do that accordingly.

The second matter relates to the opportunity for representation and the right of family members of the deceased, the subject of an inquest, to question and cross-examine witnesses. Again, this is a matter which is qualified in this amendment, in particular indicating that it does not limit any other provision of the act, which sets out the basis upon which a person, any person, might apply to participate in the proceedings. In any event, we thank the other place for their consideration of the bill and agreement. Otherwise, with these amendments, which the government accepts, I seek the passage of the bill.

Motion carried.

At 17:39 the house adjourned until Wednesday17 March 2021 at 10:30.