CORONERS (RECOMMENDATIONS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 29 September 2010.)

The Hon. I.K. HUNTER (23:16): I will be very brief. The government has already put its position on this bill on record. I rise tonight to make some further comments in relation to amendments that have been placed on file by honourable members.

The government appreciates the efforts that members have made to improve this bill, but we feel that the amendments neither independently nor together sufficiently improve the bill to an acceptable level. The government maintains that there is some scope for improving the act but we feel that the current bill is not the vehicle to drive this improvement. We will not be supporting the bill or the amendments.

The Hon. K.L. VINCENT (23:16): I also will be brief. I am pleased to support the Hon. Stephen Wade's Coroners (Recommendations) Amendment Bill 2010. As the honourable member outlined in his introduction of the bill, this issue and reforms relating to it have been more than 10 years in the making. If we are to support a transparent, accountable and effective coronial inquest process in this state—I would suggest to honourable members that if they wish to get home in time they might allow me to finish my contribution—then this reform regarding recommendations is necessary and long overdue.

The government has suggested that it will require significant extra resourcing to give the Coroner the additional scope, but I do not believe this to be the case. The bill will simply empower the Coroner to recommend on matters they come across through the course of regular investigation, and will bring us into line with other Australian states.

Unfortunately, I gather from speeches made in this place that for some reason the government is not keen on the extra transparency and protection that this bill could provide. This is unfathomable to me. I commend the work done by the Hon. Mr Wade and the Hon. Mr Darley on shaping and finetuning this bill, and I will be supporting them both as we move into the committee stage.

The Hon. S.G. WADE (23:18): In summing up I would like to thank honourable members for their contributions; namely, the Hon. Carmel Zollo, the Hon. Mark Parnell, the Hon. Ann Bressington, the Hon. Ian Hunter and the Hon. Kelly Vincent.

In so doing I would particularly like to acknowledge the comments of the Hon. Carmel Zollo. I was pleasantly surprised to hear her response on behalf of the government, and I quote the key section:

The government agrees that there should be some extension in the Coroner's power to make recommendations; however, this bill goes too far. The government is also not convinced of the need to amend the reporting requirements under the act.

That is a significant shift from the government's contribution to predecessor bills to this bill and I believe it offers some hope that the government will, if you like, come into the conversation.

As I have indicated to the house previously, this is not a Liberal bill. It was initially the product of the Hon. Sandra Kanck; developed by the Hon. David Winderlich. The Liberal Party took it up in this parliament and, true to that heritage, was very much engaged with the Hon. John Darley to develop it.

I would also like to acknowledge the range of stakeholders that I mentioned in my second reading speech. This has been very much a collaborative project, both within the parliament and beyond.

Having acknowledged the Hon. Carmel Zollo's comments on behalf of the government that the government does see the need for reform, I hope that if the council does support this bill tonight (and I do expect that will happen) the government might look for an early opportunity—which might be tomorrow when the bill turns up in the House of Assembly—to amend it.

After all, the government has criticised the opposition and, for that matter, the whole of this council, for not amending bills. If this bill does have some merit, which the government is indicating is so, then we would be more than open to talking about how it can be improved. I thank honourable members for their contributions and hope that the council might see fit to pass the second reading so that we might consider it further in committee.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 and 2 passed.

Clause 3.

The Hon. S.G. WADE: I move:

Page 2, lines 15 to 17 [clause 3(1), inserted subsection (2)(b)]—Delete paragraph (b) and substitute:

(b) relates to a matter arising from the inquest, including 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.

Under section 25(2) of the Coroner's Act 2003, the court may 'add to its findings any recommendation that might, in the opinion of the court, prevent, or reduce the likelihood of, a recurrence of an event similar to the event that was the subject of the inquest'.

The bill before us has a broader definition in clause 3(1) which in addition to the provisions above includes any recommendation that in the opinion of the court is appropriate in the circumstances even if the recommendation relates to a matter that was not material to the event that was the subject of the inquest.

Feedback from the Law Society, a medical defence organisation, the Aboriginal Legal Rights Movement and the state Coroner have persuaded me that the definition as it stands in the bill is too ambiguous. Instead it was suggested that that clause should be amended in two ways: first of all, to narrow it to ensure that any recommendation is sufficiently connected to the death to be within the coronial jurisdiction and, secondly, so that the section be clarified by reference to themes of relevant factors identified in other state and territory coronial statutes.

The opposition has taken advice, and the drafting of the amendment was assisted by the evidence law expert Andrew Ligertwood. We are proud to have a South Australian legal academic of the standing of Mr Ligertwood. We believe that the amendment improves the bill and I acknowledge the comments by government members that they acknowledge that it does improve the bill. Perhaps we might be able to work on the bill even further to get it to the point where the government could support it. I commend the amendment to the council.

Amendment carried.

The Hon. J.A. DARLEY: I move:

Page 2, lines 18 and 19 [clause 3(2)]—Delete subclause (2) and substitute:

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

and any relevant Minister other than the Attorney-General

(2a) Section 25(4)(b)(i)—delete subparagraph (i)

(2b) Section 25(5)—delete subsection (5) and substitute:

(5) Each relevant Minister must, within 8 sitting days of the expiration of 3 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.

For the benefit of those members who are not aware, this amendment was originally intended to be introduced as part of a private member's bill in response to the inquest into the death of Christopher Wilson. I will provide further details about this matter in a moment.

Given that my private member's bill would have dealt with the same issue as the bill introduced by the Hon. Stephen Wade, and following discussions with the honourable member, it was decided that I would deal with the issue by way of an amendment to his bill instead.

At the outset, I would like to thank the Hon. Stephen Wade for his cooperation and support with respect to this amendment. The amendment relates to section 25 of the Coroner's Act, which deals with findings on inquests. Section 25 provides that:

(4) The Court must, as soon as practicable after the completion of the inquest, forward a copy of its findings and any recommendations—

(a) to the Attorney-General; and

(b) in the case of an inquest into a death in custody—

(i) if the Court has added to its findings a recommendation directed to a Minister or other agency or instrumentality of the Crown—to each such Minister, agency or instrumentality of the Crown; and

(ii) to each person who appeared personally or by counsel at the inquest; and

(iii) to any other person who, in the opinion of the Court, has a sufficient interest in the matter.

Section 25 further provides that, in the case of an inquest into a death in custody:

(5) The Minister or the Minister responsible for the agency or other instrumentality of the Crown must, within 8 sitting days of the expiration of 6 months after receiving a copy of the findings and recommendations under subsection (4)(b)(i)—

(a) cause a report to be laid before each House of Parliament giving details of any action taken or proposed to be taken in consequence of those recommendations; and

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

This amendment is intended to broaden those reporting requirements in two ways. Firstly, it will extend the reporting requirements so that they apply to all inquests where recommendations directed to a minister, an agency or an instrumentality of the Crown have been made by the Coroner. At present, those reporting requirements are limited to deaths in custody. Secondly, where no action has been taken, or is proposed to be taken, the amendment will require the minister to provide the reasons for not taking, or not proposing to take, any action.

As I mentioned earlier, this amendment came about as a result of the inquest into the death of Christopher Wilson, who was murdered on 27 February 2004, aged 23. Between 14 August 2008 and 21 July 2010, there was an exchange of correspondence between my office and that of the Premier, the former attorney-general and the current Attorney-General, all relating to the findings and recommendations of the Coroner. In addition, Mrs Wilson and I both provided written submissions to the Review of the South Australian Public Integrity System, raising this same issue.

To his credit, in July of 2010—some two years after this matter was first raised—the current Attorney-General did provide some feedback in relation to the recommendations of the Coroner; however, that advice did not give any positive indication regarding whether or not the recommendations would be implemented. Since that time, my office has asked for updates with respect to the Coroner's recommendations more generally.

It is unfortunate that some 3½ years have passed and Mrs Wilson still finds herself waiting for action from the government in relation to all of the recommendations of the Coroner. This is clearly unacceptable. At the very least, this amendment would prevent another family from experiencing similar heartache and frustration to that experienced by Mrs Wilson. I urge all honourable members to support this amendment.

The Hon. S.G. WADE: On behalf of the opposition, I thank the honourable member for taking the opportunity to incorporate into this bill some of the wise opportunities to reform the act that he has identified through his work with his constituent. It did amaze me that we have not, up to this point, taken the opportunity to have an accountability mechanism for coronial inquests that do not involve deaths in custody. After all, if the Coroner has gone to the bother of a coronial inquest, why would we not try to take the opportunity to learn the lessons before a death occurs?

The other aspect of the honourable member's amendment, in terms of reporting back on inaction as well as action I think is very wise. Obviously, in whole areas of public administration, acts of omission are just as significant as acts of commission. So, with those brief words, I welcome and support the amendment of the Hon. John Darley.

The Hon. J.M. GAZZOLA: I only make a contribution on the basis that I note—

Members interjecting:

The ACTING CHAIR (Hon. J.S.L. Dawkins): Order, members on my left!

The Hon. J.M. GAZZOLA: —that the Hon. Mr Darley's amendment was lodged at 3 o'clock this afternoon. I only note that if the government tried to amend one of its own bills at 3 o'clock on a sitting day it would be pulled up and we would be told—

Members interjecting:

The ACTING CHAIR: Order!

The Hon. J.M. GAZZOLA: —in the words of the Hon. Terry Stephens, that this is an absolute disgrace and that we should be reporting progress. Thank you, sir.

The Hon. S.G. WADE: I observe that most government bills start in the House of Assembly and our consideration is the final consideration. The Hon. John Darley has moved an amendment; the House of Assembly will have the opportunity to consider it with all due consideration.

Members interjecting:

The ACTING CHAIR: Order! Interjections are out of order.

The Hon. G.E. Gago interjecting:

The ACTING CHAIR: The minister is out of order.

Amendment carried.

The Hon. R.P. Wortley interjecting:

The ACTING CHAIR: Order! The ministers are not helping the debate and neither are members on my left.

The Hon. J.A. DARLEY: I move:

Page 3, after line 8—Insert:

(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.

This is a consequential amendment.

Amendment carried; clause as amended passed.

Schedule and title passed.

Bill reported with amendment.

Third Reading

The Hon. S.G. WADE (23:33): I move:

That this bill be now read a third time.

Bill read a third time and passed.

At 23:34 the council adjourned until Thursday 29 September 2011 at 14:15.