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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-09-09 Daily Xml
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CORONERS (RECOMMENDATIONS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 15 July 2009. Page 2914.)

The Hon. S.G. WADE (17:31): In rising to indicate the opposition's position, I indicate that the opposition is very uncomfortable that we have not been provided with a substantive government response to this bill. Let us remember where this bill came from. It was first tabled by the Hon. Sandra Kanck at the end of October 2008, so it has been with us for 10 months. The Hon. David Winderlich took on the bill, and over the past three months he has been giving notice to members that he would like to bring it on for debate.

There has been ample opportunity for the government to form a view. In fact, the contribution from the Hon. Bernard Finnigan took only six lines in Hansard on 17 June. This was some eight months after the bill had been tabled. Not a word as to the implications of this bill. I understand that the government has concerns about the detail in the bill. As I understand it, it is not a fundamental disagreement about policy. If that is the case, why doesn't the government give the courtesy to the Hon. Sandra Kanck and the Hon. David Winderlich and give a substantive response?

What's more, why doesn't the government show respect to this council so that this council has the opportunity to consider legislation with all the government's concerns? The Attorney-General might find it convenient that the house, where he does not have the majority, is not the house that has all the information; but, because he and his mate, Premier Rann, have failed in their attempt to abolish this chamber, we will be around here for quite a bit longer. They need to learn to work with members of the opposition and members of the cross benches.

It is the opposition's view that every member of this council is a democratically elected legislative councillor who deserves the respect to have their proposals properly considered. We from the opposition have had a detailed position on this matter for some time. We have been ready on every occasion, when the Hon. David Winderlich has called for a vote on this matter, to vote on it. Unfortunately, the government shows such disregard not merely to the Hon. David Winderlich but also to this council by not proffering a substantive response to the bill.

The opposition does not intend to reward the government for its insult by not progressing this legislation. We can act only on the information before us, and on the information before us we believe this bill deserves to be supported, and I now intend to outline why. The bill was initially introduced, as I said, by a former member of this place, the Hon. Sandra Kanck, and we note that her successor, the Hon. David Winderlich, is progressing the bill.

The bill seeks to amend the scope of recommendations which the Coroner is permitted to make in relation to an investigation. When considering the system of coronial inquests, it is important to remember that the purpose of these inquests is not simply to determine whether the cause of death of the subject of the inquest was due to some negligence or malpractice. Equally, coronial inquests are about identifying systemic issues and practices which led to the death and which could be addressed and thereby prevent future deaths.

There are many situations which require a coronial inquest, including: where a death occurs within 24 hours of a medical or surgical procedure or within 24 hours of discharge from a hospital; where the death occurs on a plane or maritime vessel; where the person is under some form of guardianship; and where the death occurs in custody, which includes as a result of a police pursuit. As part of the findings of the inquest, under section 25 (2) of the Coroners Act, the Coroner is entitled to make:

...any recommendation that might, in the opinion of the court, prevent, or reduce the likelihood of, an occurrence of an event similar to the event that was the subject of the inquest.

The problem arises in that this provision is understood to mean that the recommendations of the Coroner must directly relate to the event which is the subject of the inquest. In 2008 in the case of Saraf & Anor v Johns the Supreme Court held:

...the power to make a recommendation extends only to such matters as might prevent or reduce the likelihood of recurrence of a death in like circumstances.

Thus, the Coroner is not able to make more general recommendations about what we might consider systemic issues generally or recommendations relating to matters which occurred after the subject's death, only recommendations which specifically relate to the event. It is a narrow prescription which, in the opinion of the opposition, undermines one of the key purposes of a coronial system; that is, preventing similar events. Rather than addressing the causes or the roots of the event, it targets what I would call the last line of defence.

This is an issue that I came across frequently in my previous responsibility as shadow minister for correctional services. In the portfolio of correctional services I had cause to look at the findings of several coronial inquests into deaths in custody, some dating back a number of years. Due to the narrow scope permitted for coronial recommendations, they tended to focus on issues such as whether staff should carry knives to cut down prisoners who were attempting to hang themselves or whether the railings on the second floor should be higher; in that sense, very specific recommendations. Unfortunately the Coroner was not able to address some of the more systemic issues, in particular the impacts of practices such as prison overcrowding currently being experienced by our correctional services system.

Rather than trying to render it physically impossible for a prisoner to die in custody, a task which is very difficult indeed, I believe that there would be benefit from addressing the causes which might lead a prisoner to attempt suicide or lead to a death in custody. In fact, the Coroner himself addressed this exact issue. In the findings of an inquest into the death of a prisoner in Yatala, the Corner observed:

A basic problem is that the chronic over-crowding in South Australian prisons requires multiple occupation of cells. I agree that it is highly inappropriate that prisoners who have a communicable disease should be 'doubled up' with prisoners who do not. The health risks are obvious. If a prisoner does develop a communicable disease as a result of this process, then the department will have to bear the consequences. In this particular case, however, I am unable to find that Marshall Carter died as a result of this policy. I am therefore unable to make a recommendation pursuant to section 25(2) of the Coroners Act on this topic.

We are well aware of the overcrowding crisis in South Australia's prisons and the effects this has on the security and safety of our prison staff and prisoners, yet the government continues to deny the existence of this crisis.

Clearly, the government is not willing to listen to the comments and observations of our judiciary and magistracy, but maybe it would be forced to take notice of a coronial inquest which has the power to make recommendations. This is a prime example of the value of this bill in allowing the Coroner to make recommendations relating to systemic causal issues as well as specific 'front line' issues. In the findings of a coronial inquest handed down in 2004, the Coroner specifically stated:

...the Coroner should have the power to make recommendations about issues which are incidental to a death rather than...causally relevant to it. In several states of Australia Coroners now have that power. That power does not exist in South Australia...

I pause there to reflect on the implications that that statement has for the excuse given by the Hon. Bernard Finnigan for the government's failure to address this bill. When the council last addressed this matter on 15 July, the Hon. Bernard Finnigan said this as one of the reasons that the government has not addressed the bill:

I indicated that the government was consulting the Coroner and, without further information, we would be opposing the bill as it stands.

The Coroner has already made his position clear. It was on the record in 2004. Another example relates to the inquest which was the subject of the Supreme Court ruling which I mentioned earlier. In this case, following the death of an elderly lady in a nursing home, a resident doctor signed a death certificate for the lady and she was cremated before a post mortem examination could be made, hampering the later coronial inquest.

The Coroner made recommendations designed to prevent such a situation occurring again but, because they related to events after the death, the Supreme Court ruled that they were beyond the Coroner's power. Following this event, the Coroner again raised his concerns as to the narrow scope in which he is permitted to make recommendations in his 2007-08 annual report, where he stated:

In my opinion, it would be desirable to amend the Coroners Act 2003 to extend the power to make recommendations to include those relating to the administration of justice.

The Coroner also observed that several other jurisdictions have the power to make recommendations beyond the narrow scope provided in South Australia. So, here we have several clear statements from the Coroner that he considers that the scope of coronial recommendations should be expanded, as is proposed by this bill. The opposition respects the opinions expressed by the Coroner and we consider that the calls for change should be supported.

The bill also seeks to address a second issue, which is: what happens to the recommendations after they have been made? Currently, once the Coroner has handed down his findings, the Attorney-General, or another responsible minister, must, within six months, prepare and table a report outlining any actions taken or response to the recommendations of the inquest. The issue then ends there.

Under the bill before us, the Coroner would be granted additional authority to require a supplementary report from the minister that addresses any matter that the Coroner considers necessary arising out of the original report. The minister must then prepare and table the requested supplementary report within three months of the request. This provision for the requirement of supplementary reports seems a sensible measure which builds on the objective of the coronial system to prevent similar deaths occurring.

If we are serious about preventing future notifiable deaths, whether they be deaths in custody, deaths as a result of a medical procedure or otherwise, we need to take the recommendations of the Coroner seriously. The opposition believes that, even without the benefit of the illumination that might have been offered by the government, this bill is a practical step to strengthen the coronial process and, accordingly, we support the bill and look forward to its progression through the remaining stages.

In conclusion, I indicate our disappointment that the government did not see fit to engage in the legislative process in this chamber. The opposition, of course, will give due consideration to any government amendments in the other place and in due course consider them in this place.

The Hon. DAVID WINDERLICH (17:43): I thank the Hon. Bernard Finnigan and the Hon. Stephen Wade for their contributions. I think the Hon. Stephen Wade summed up the logic of the bill very well. To begin with, he made some comments about the insult that the government essentially issued by not giving a substantial response to this bill. I am not particularly worried about being insulted; I will survive. I also think that my predecessor, the Hon. Sandra Kanck, has a pretty thick hide and she will survive.

The real issue of consequence in this case is that we are talking about matters of life and death. We are talking about giving the Coroner an additional capacity to make recommendations that could save lives and could identify systemic flaws that lead to deaths in the future, and if those flaws are identified then those deaths could be prevented. So, I think the real insult is actually much more important in that it is to anyone who in the future might die because the Coroner's range of powers are unduly narrowed, for reasons which are not quite clearly explained by the government.

The other thing to keep in mind is that this decision to not make a substantial response to what I think is a very practical but important set of recommendations is from a minister who was fond of issuing challenges to my predecessor, such as, if anyone were to die of an ecstasy overdose, their relatives should be apologised to. So, that is the pedigree—matters of life and death are used to score political points but, when there is an opportunity to make a very simple and practical reform to our coronial system, it somehow does not even warrant a proper response.

In relation to the government's response, such as it is, the Hon. Bernard Finnigan raised a couple of issues. He said that he was concerned about the time frame in which a report was required to be tabled under these amendments. It involves a minister having eight sitting days or three months to table a supplementary report for both houses to address the matters raised by the Coroner and to forward a copy of a supplementary report to the state Coroner.

If the government were genuinely constructive about this, and if it wanted to discuss amending the time frame, I would certainly be open to that suggestion. I have had no such indication and no such approach. The Hon. Bernard Finnigan indicated that the government would not support the bill unless it had a chance to consult with the Coroner. It has now had almost three months to consult with the Coroner but, clearly, this matter of life and death is not particularly urgent. Given that it is a fairly simply matter on which to consult, the only explanation is that the government had no intention to do so.

The government is apparently concerned about the additional financial resources that may be incurred as a result of a broader investigative scope. In general terms, it is often cheaper to deal with concerns as they occur, rather than wait for them to escalate into an endemic problem. I question how you could justify opposing the changes on the basis of potentially higher costs when there is the potential to save lives.

Justifying opposition changes on these grounds leaves the government open to criticism later down the track when it is inevitably found to have ignored or restricted advice from the Coroner that resulted from an investigation. The Coroner could very well end up investigating deaths that would otherwise be prevented if they had the ability to make wider recommendations in the first instance.

Another key point is that the government uses the word 'may', in that there 'may be' additional financial resources required. Clearly, it could not be bothered even to check and quantify whether or not this process would be more expensive.

In conclusion, I think that the bill is very practical, it is very simple and it has the potential to save lives. It is hard to find a reason not to support such a bill, and it is impossible to think why these proposals do not merit a considered response from the government. However, the only reason I can think of is that in some ways this is an accountability measure.

The fact that reports from a state Coroner have to be tabled within a certain amount of time and come back into parliament means that the recommendations do not just disappear into the ether, so in some sense the government is held accountable. That is the only possible objection I can think of.

This brings me back to yet another phrase of which the Attorney-General and the government are fond, 'If you have nothing to hide, you have nothing to fear.' I think it is very disappointing that this did not get a considered or coherent response from the government, and it is disappointing that it will not be supported.

I look forward to the support of other members of the council so that we can at least make the point that this is worthy of support and put the onus of the refusal of very simple practical improvements in our coronial system back where it belongs—on the government.

Bill read a second time.

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