Coroners (Inquests and Privilege) Amendment Bill

Second Reading

The Hon. R.I. LUCAS (Treasurer) (16:53): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation and the detailed explanation of clauses inserted in Hansard without my reading them.

Leave granted.

Mr President, the Bill I introduce today is the Coroners (Inquests and Privilege) Amendment Bill 2020. The Bill amends the Coroners Act 2003 to change the way in which the privilege against self-incrimination and penalty privilege operate in the coronial jurisdiction. It also introduces an amendment to remove the requirement to hold mandatory inquests where a person has died of natural causes, whilst under a mental health inpatient treatment order, outside of a psychiatric ward setting.

Mr President, currently, section 23(5)(a) of the Coroners Act deals with the privilege against self-incrimination, and it provides that a person is not required to answer a question if the answer would tend to incriminate the person of a criminal offence.

Penalty privilege operates in a slightly different way and applies where a witness may decline to answer a question on the basis that it may expose them to a penalty (including a penalty in their employment). Penalty privilege is available to both natural persons and corporations.

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

It had been previously assumed by those practising in the coronial jurisdiction that penalty privilege was not available to witnesses giving evidence in coronial inquests. It follows therefore, that the Bell decision has significantly altered this widespread perception of the application of this type of privilege.

Without addressing this issue legislatively, there is a real risk that the Coroner will not be able to conduct full and thorough inquests, or be able to obtain the information from witnesses that is necessary.

The amendments contained in the Bill will also bring the South Australian Coroners Act more closely into line with the other Australian jurisdictions.

All other Australian jurisdictions have provisions that allow the Coroner to require that a witness answer a question even if the evidence would tend to incriminate the person or expose them to a penalty.

Western Australia, New South Wales, Victoria, the Australian Capital Territory and the Northern Territory employ a 'certificate' style system, whereby the Coroner issues a certificate to the witness in respect of the relevant incriminating evidence certifying that it cannot be used in other, later, proceedings.

The provisions in this Bill will implement a certificate system that is very similar to that used in those jurisdictions.

The provisions in the Bill deal with both the privilege against self-incrimination and penalty privilege in the same way, and allow the State Coroner to require that a witness answer a question if it is the interests of justice, even where the answer tends to incriminate them or expose them to a penalty.

The Coroner will then issue a certificate in respect of that evidence, and the evidence will not be able to be used against that witness in any other proceedings, including civil proceedings. The only exception to this is criminal proceedings in relation to the falsity of that evidence.

Mr President, these amendments will help improve the quality of evidence that the Coroner is able to obtain during inquests and reflects a sensible and balanced approach by the Government to the issues that have recently arisen within the jurisdiction. It is important to note that the amendments do not affect the operation of legal professional privilege, which remains available to all witnesses in the coronial jurisdiction as is the current arrangement.

I turn now to the other amendments included in the Bill, which relate to the definition of a 'death in custody'.

Currently, where there is a death that falls within the definition of a death in custody, section 21 of the Coroners Act provides that an inquest must be held.

However, section 76A of the Guardianship and Administration Act 1993 provides that the death of a person from natural causes who is subject to an order under section 32(1)(b) of the Guardianship and Administration Act is not taken to be a 'death in custody' for the purposes of the Coroners Act. The Coroner can still decide to hold an inquest if it is considered necessary or desirable, or at the direction of the Attorney-General.

The Bill removes this provision from the Guardianship and Administration Act and inserts it into the Coroners Act, for practicality and ease of use.

The Bill also inserts a provision in the same terms as section 76A, but applies it to the death of persons from natural causes who are subject to an inpatient treatment order under Part 5 of the Mental Health Act 2009.

An inquest will no longer be mandatory in these circumstances, but can of course still occur where the Coroner believes it to be necessary or desirable.

Notably, this will only apply to those deaths from natural causes in persons who were subject to an inpatient treatment order that occurred outside of a psychiatric ward. Deaths occurring within a psychiatric ward setting will still require a mandatory inquest.

This amendment will not only help preserve the resources of both the South Australia Police and the Coroners Court by reducing the number of unnecessary inquests, but more importantly, will mean that the families and loved ones of those deceased persons will not have to go through the lengthy, and often traumatic, process of an inquest.

Mr President, the Coroner undertakes an extremely difficult, yet vital role within our justice system. The Marshall Liberal Government is pleased to introduce this Bill which will give the Coroner stronger powers to aid investigations and ensure that inquests can continue to run in a smooth but fair way. Mr President, I commend the Bill to Members and seek leave to insert the explanation of clauses into Hansard without my reading it.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Coroners Act 2003

4—Amendment of section 3—Interpretation

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

5—Amendment of section 21—Holding of inquests

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

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

6—Amendment of section 23—Proceedings on inquests

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

7—Insertion of section 23A

Section 23A is inserted:

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

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

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

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

Schedule 1—Related amendment and transitional provision

Part 1—Amendment of Guardianship and Administration Act 1993

1—Repeal of section 76A

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

Part 2—Transitional provision

2—Transitional provision

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

Debate adjourned on motion of Hon. I.K. Hunter.