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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2008-10-29 Daily Xml
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CORONERS (RECOMMENDATIONS) AMENDMENT BILL

Introduction and First Reading

The Hon. SANDRA KANCK (16:10): Obtained leave and introduced a bill for an act to amend the Coroner's Act 2003. Read a first time.

Second Reading

The Hon. SANDRA KANCK (16:11): I move:

That this bill be now read a second time.

In preparing this bill, I was struck by the realisation that, although the Coroner investigates the circumstances of deaths of people, his or her function is really all about saving lives. Coronial inquests occur to help us learn how to prevent avoidable deaths from happening in the future. The amendments I am introducing in this bill today are designed to help the Coroner perform that lifesaving task.

These amendments came about as a result of the Rough Justice seminar that I held in Parliament House in September to discuss the ever-tightening noose of the law and order agenda of the major parties. At this seminar, Chris Charles, a solicitor with the Aboriginal Legal Rights Movement in South Australia, presented a paper in which he proposed these recommendations.

I take the opportunity to pay tribute to Mr Charles. A good lawyer can make a lot of money in very comfortable surroundings, but he is one of these people who has, instead, dedicated most of his legal career to serving the interests of indigenous people.

In speaking, Mr Charles paid tribute to my former colleague, and a colleague of many others in this chamber, the Hon. Ian Gilfillan, who in 2003 tried to amend the Coroners Act along similar lines to what I am doing today. The issues which these amendments are seeking to address were identified by the Royal Commission into Aboriginal Deaths in Custody, which found that coronial reform was a key measure to address the high rate of deaths in custody.

My first amendment to section 25 would essentially give the Coroner the power to make a broader set of recommendations when reporting on a death, and it provides:

(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) is appropriate in the circumstances (even if the recommendation relates to a matter that was not material to the event the subject of the inquest).

Clause 2(a) is identical to the existing provisions; it is 2(b) that widens the Coroner's power.

I see this amendment as necessary because, for some strange reason, we, as a parliament, have insisted that the Coroner wear blinkers. Under the current act, the Coroner investigates a death. He or she, in the process, identifies other matters which may lead to other deaths, but he or she must make recommendations only on the incident which is being investigated, or on a matter similar to the matter being investigated.

This limitation was identified by the then state coroner, Mr Wayne Chivell, on 31 May 2004 in the inquest into the death of Mr Lindsay. In that case, submissions were made to the Coroner that the family of the deceased were reluctant to sign statements prepared for them by the police, because those statements did not contain the allegations that the family members were making about the police and the scene of the death.

The family was also reluctant to cooperate with police because of the treatment they had received at the scene. The average person would realise that, if police actions were causing witnesses to be reluctant to cooperate, that could have serious implications for any future inquiries and, indeed, the general administration of justice. The Coroner noted this but under the act did not have the power to pursue this issue or make recommendations about it. The Coroner commented:

This is the type of issue which has given rise to recommendations, for example, in the Royal Commission into Aboriginal Deaths in Custody, that the Coroner should have the power to make recommendations about issues which are incidental to a death rather than directly causally relevant to it. In several states of Australia coroners now have that power. That power does not exist in South Australia and, in my opinion, it would be inappropriate for me to exercise my power to force an officer to answer questions about issues that are irrelevant to my inquiry.

I wonder in referring to other states having these powers whether this was code for a request for the same in South Australia.

In the Carter inquest delivered by the State Coroner on 16 June 2000, a young Aboriginal man who was transferred from a youth training centre to an adult prison died in his cell from a drug overdose. The circumstances of his incarceration were that he was placed in a cell with shared toilets and handwashing facilities in the company of another Aboriginal prisoner who had an infectious disease. This prisoner's case management files included recommendations for single cell accommodation, stringent cleaning of his cell and discouragement of homosexual activity, sharing needles and tattoos and no contact sports. The Coroner received the information but could not use it as the subject of recommendations. In commenting on the undesirability of the doubling up of prisoners who had communicable diseases, the Coroner concluded:

In this particular case I am unable to find that Mr Carter died as a result of this policy. I am therefore unable to make a recommendation pursuant to section 25(2) of the Coroner's Act on this topic.

The fact that prisoners with serious communicable diseases were sharing cells with prisoners who did not have such diseases is clearly a significant matter that deserved some consideration. It is possible that such circumstances could create high levels of anxiety among some vulnerable prisoners, but the Coroner was prevented from making any recommendations.

In the Saraf case, which concerned the death of a Mrs Wells, the State Coroner had recommended that the Cremation Act be amended to disqualify a doctor from certifying a death in a nursing home where that doctor had a financial or proprietorial interest. The South Australian Supreme Court found a few months ago, on 23 June 2008, that this exceeded the Coroner's powers under section 25(2). Here we have three cases where the Coroner has identified issues which, if addressed, could arguably save lives in the future. However, because the Coroner's Act forces the Coroner to wear blinkers, that is, he can make recommendations only on matters related to or similar to a particular death, these improvements are waiting to be made in our system.

The second set of amendments in this bill is designed to give the Coroner the power to force the government to respond to his recommendations. I stress that it does not give the Coroner the power to make the government implement them but simply to give a response. These amendments to section 25(3) involve the addition of two new subclauses (6) and (7), which enable the Coroner to request a supplementary report from a minister that addresses any matter that the State Coroner considers necessary arising out of the report. The minister would then have eight sitting days, or three months, to table a supplementary report before both houses to address the matters raised by the Coroner and to forward a copy of the supplementary report to the State Coroner. The effect of this is obvious: recommendations would not just disappear into the ether—it is an accountability measure.

A good example of the need for the State Coroner to be able to force a response is the longstanding debate about hanging points in cells. Coroner's reports have been calling for the elimination of hanging points since 1995. We have had the Wakely inquest, the Johnson inquest and the Taylor and Glennie inquests as examples of this. The department and the minister have refused essentially on budgetary grounds. My amendments would enable the Coroner to force the minister to explain a lack of action, both to the Coroner and to the parliament. This process could expose or vindicate the minister, but at least it would force accountability. As we are told constantly in relation to other areas of law, if you have nothing to hide you will have nothing to fear. I find it difficult to see how either of these amendments could be opposed. We are, after all, talking about how to save lives. We all know that politicians and bureaucracies will cover up their mistakes or avoid decisions that might blow the budget, or alienate voters.

I remind members that state coroners are serious, sober people. They are chosen by government to take up those positions because of those characteristics. It is highly unlikely that they would ever use these expanded powers in a frivolous manner. The recommendations and the requests have been made over more than a decade. It is time now for action, and that is why I have introduced this bill.

Debate adjourned on motion of Hon. J. Gazzola.

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