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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2010-09-29 Daily Xml
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CORONERS (RECOMMENDATIONS) AMENDMENT BILL

Introduction and First Reading

The Hon. S.G. WADE (16:41): Obtained leave and introduced a bill for an act to amend the Coroners Act 2003. Read a first time.

Second Reading

The Hon. S.G. WADE (14:42): I move:

That this bill be now read a second time.

I am proud to table the Coroners (Recommendations) Bill 2010. Although the Coroner convenes as a court, the focus of the Coroner is on saving lives. Coronial inquests are held to help us prevent avoidable deaths. Today, I table a bill to support the Coroner in this mission of saving lives. The bill primarily seeks to amend the scope of recommendations that the Coroner is permitted to make in relation to an investigation.

In 2008, the Hon. Sandra Kanck introduced a bill in the Legislative Council to expand the Coroner's powers. The Hon. David Winderlich took over that bill when the Hon. Sandra Kanck retired from this chamber. The Liberal opposition supported that bill as it passed the Legislative Council. Although the bill was not considered by the House of Assembly, our support continues.

In the absence of those two honourable members, the Liberal opposition seeks to support what was a good idea and, in that context, I table this bill, which is identical to the bill originally moved by the Hon. Sandra Kanck and the Hon. David Winderlich. Under section 25(2) of the Coroners Act 2003, the Coroner is able to:

...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.

Under the current act, the Coroner investigates a death. He or she, in the process, may identify 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 has the practical consequence, in the opposition's view, of lessons that could be learned from incidents may not be, and I will give some practical examples. On 16 June 2000, the Coroner delivered his findings on the death of a young Aboriginal man, a man by the name of Carter. He died in his cell from a drug overdose, having been transferred from a youth training centre to an adult prison. Mr Carter was placed in a cell with shared toilets and handwashing facilities in the company of another Aboriginal person who had an infectious disease. This placement was made even though the 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 contact sports.

The Coroner could not make recommendations based on this information. The Coroner commented on the undesirability of the doubling-up of prisoners who had communicable diseases in the following terms:

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 Coroners Act on this topic.

The recommendations of the Coroner, as I said, must directly relate to the event which is the subject of the inquest. This limitation was again highlighted by the then State Coroner (Mr Wayne Chivell) in 2004 in the inquest into the death of a 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 co-operate with police because of the treatment they had received at the scene.

The Coroner noted these facts but, under the act, did not have the power to pursue this issue or make recommendations about it. The Coroner commented that:

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 inappropriate for me to exercise my power to force an officer to answer questions about issues that are irrelevant to my enquiry.

In 2008, in the case of Saraf & Ors and Anor v Johns, the Supreme Court held that:

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.

That case related to the death of a Mrs Wells, an elderly resident of 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, which had the effect of inhibiting a later coronial inquest. The State Coroner 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 Supreme Court found that this recommendation exceeded the Coroner's powers under section 25(2). 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 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.

In moving this bill I recognise the advocacy of Mr Chris Charles, a highly respected solicitor with the Aboriginal Legal Rights Movement of South Australia. Mr Charles has written a document on the South Australian Coroners Act 2003 and the Consequences for Prison Reform of Partial Implementation of the Royal Commission into Aboriginal Deaths in Custody. I also recognise my leader, Isobel Redmond, and her support for this reform.

All other jurisdictions allow their coroners to make recommendations on any matter related to the death and often highlight the administration of justice and public health and safety as relevant considerations. This bill seeks to bring us into line with all other Australian jurisdictions. The bill aims to allow the Coroner to make recommendations about broader issues which relate to a death but which may not have directly caused the death.

Under subsection (2)(a) the court may add to its findings any recommendation that, in the opinion of the court, might prevent or reduce the likelihood of a recurrence of an event similar to the event that was the subject of the inquest. This bill adds subsection (b), which provides that the court may add to its findings 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 the subject of the inquest.

South Australian coroners have been requesting these powers for over a decade. All other Australian coroners have these powers. The opposition considers that this issue should be addressed. In 2009, in response to what I might call the Kanck-Winderlich bill—an identical bill to this one—the Hon. Bernard Finnigan, on behalf of the government, argued that the bill would significantly increase the complexity of an inquest and the time and resources necessary to conduct it. I would put it to the government that we are already undertaking the cost of the coronial inquest. It is a waste of that expenditure to ignore relevant factors identified by it.

The bill also empowers the Coroner to compel a minister to prepare a supplementary report addressing concerns raised in a Coroner's report. The supplementary report would be required to be tabled in both houses of parliament within three months. The compulsion is not for the government to act on the recommendations, but to provide a response.

The introduction of this bill would also see the time frame for responses reduced. Currently, responses to coronial reports must be within six months: the bill would make it three months. This is not a matter dealt with under the coroners acts of all jurisdictions but, of the four jurisdictions' statutes which provide a reporting time frame, only South Australia provides a six-month time frame; the other three provide for a three-month time frame.

This bill seeks to adopt that time frame, not in the sense that we need to have national uniformity, but if the bureaucracies of the other three jurisdictions can manage to provide a response within three months then we have the same confidence in the South Australian bureaucracy. After all, early response to a coronial recommendation supports early action: early action may well save lives. We believe that the introduction of this bill would support systems improvements to save lives and reduce injury, and we also believe that it supports enhanced parliamentary accountability.

In conclusion, in response to calls from coroners past and present and members of the community, particularly members of the Aboriginal community and Mr Chris Charles, and in continuation of the work of my former colleagues, I am pleased to table this bill today.

Debate adjourned on motion of Hon. R.P. Wortley.

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