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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-04-29 Daily Xml
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Bills

Coroners (Miscellaneous) Amendment Bill

Introduction and First Reading

The Hon. C. BONAROS (16:31): Obtained leave and introduced a bill for an act to amend the Coroners Act 2003. Read a first time.

Second Reading

The Hon. C. BONAROS (16:32): I move:

That this bill be now read a second time.

This bill follows on from a bill introduced in the last session of parliament. It introduces a number of simple and practical amendments to the Coroners Act 2003. These reforms are more than overdue; indeed, I have undertaken a veritable archaeological dig to establish the origins of the bill and to formulate a comprehensive suite of reforms, some of which go further than the bill I had previously introduced.

Thus far I have managed to trace the bill's genesis back to the Royal Commission into Aboriginal Deaths in Custody of 1991 and the tireless advocacy of people like Chris Charles, now retired from the Aboriginal Legal Rights Movement, the Hon. Ian Gilfillan in 2003, and then coroner Wayne Chivell in 2004. Sandra Kanck and David Winderlich, both Democrat members of the Legislative Council, took up the issue for a time until they left this place.

These reforms, first identified by the Royal Commission into Aboriginal Deaths in Custody 1991, found coronial reform was key to addressing the high rate of deaths in custody. The Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner subsequently found that an average of 8.5 RCIADIC recommendations were breached in each death in custody. In 2008, the Hon. Justice Debelle in his judgement in Saraf and Anor v Johns 2008 suggested that consideration might be given to amend the Coroner's Act along the lines of Victorian legislation.

The bill's more recent parentage has seen the Hon. Vickie Chapman and the Hon. Stephen Wade who, in opposition, made considerable progress passing amendments in both houses that were included as key elements of the bill that I introduced today. These members each invested a great deal of commitment and energy into progressing the bill from 2009 to 2012. I was disappointed to find the bill was eventually negatived in October 2012. As far as I can tell, that bill became the forgotten orphan of the Fifty-Third Parliament, but one that I remember well nonetheless.

Until the passing of the Coroner's Undetermined Natural Causes Amendment Bill 2020 in the last sitting of this parliament, brought on by long-term resourcing limitations of the Coroner's Office and Forensic Science SA, I was very surprised that the honourable members now in government have shown no inclination to reintroduce a bill or to make any of the recommended reforms to the act. Neither has the now opposition, which I suppose is less surprising as it did nothing in this area in its 16 years in government. It seems to be doing even less in opposition given the deals it has done with government this week alone.

The government's Coroner's Undetermined Natural Causes Amendment Bill 2020, which alleviates the need for the Coroner to determine the cause of death in specific cases the Coroner might otherwise have been obliged to investigate, has been the first and only very limited attempt by this government to reform the Coroner's Act. As needed as it was, that reform really belonged within a broader suite of reforms included in the private member's bill I am introducing today. It is remarkable but gratifying to me to know the bill I am introducing today to this Second Session of the Fifth-Fourth Parliament has been almost 20 years in the making but has at least been introduced by SA-Best.

We have listened and responded to the calls of the Coroner, the courts, constituents, legal practitioners and families of deceased persons that our Coroner's Act be brought into the 21st century. I hope the support of the now government, opposition and crossbench is today similarly enlivened and that as the Hon. Stephen Wade requested back in 2009, while in opposition, that we can all work together to pass this bill.

I have respectfully waited for the Supreme Court of South Australia to make its decision in the matter of Bell v Deputy Coroner of South Australia 2020 to introduce this bill to ensure that it is entirely consistent with those findings, and I am pleased to advise that it is. That matter also highlights the pressing need for this bill to give the Coroner the powers needed and to ensure there is no doubt about those powers. Although SA-Best does not have the resources of the government, and in particular the Attorney-General, we would like to thank in particular the office of parliamentary counsel for their excellent work on this bill.

What does the bill do? Briefly, it clarifies the jurisdiction of the Coroner's Court to identify those involved in an event being investigated where it appears they may have caused or contributed to a death, or require those persons, agencies or organisations to provide information so that the Coroner can assess the accountability or responsibility of that party involved in the event.

The recent chemotherapy bungle helped clarify the current legislation in regard to jurisdiction. However, jurisdiction has been a common ground of challenges run in the courts, including the recent SASC Bell v Deputy Coroner case which found that an incident includes the aftermath and that the Coroner can investigate post-incident actions such as reporting. My bill aims to clarify this beyond doubt.

Of course, there is another case, a decision that was reported on some days ago, regarding the death of Mr Wayne Morrison, which has also been the subject of a Supreme Court action in similar terms. It will be important to take into account the consideration of the court in that case throughout our deliberations on this bill. It improves transparency and clarifies the responsibility of the person, agency or organisation to provide information and explanations in regard to the event being investigated by the Coroner. It provides for legal representation for families of the person to whom the Coroner's proceedings relate, with that cost to be met by the Crown. Legal representatives can examine and cross-examine witnesses.

It separates legal professional privilege from privilege against self-incrimination and makes new provisions for the court to issue a certificate, providing indemnity from self-incrimination in certain circumstances. This is certainly one of the key insertions into this bill. If a person refuses to answer a question or produce a document because it would tend to incriminate them for an offence or a civil penalty in a court, if satisfied that the interests of justice require it, the Coroner can require the person to answer or produce a document. That would certainly do away with many of the current legal challenges that have taken place over a number of years regarding the court's jurisdiction.

If the court requires them to self-incriminate directly or indirectly, then the person giving the evidence will be given a certificate of indemnity in respect of that evidence in any proceedings, other than criminal proceedings in respect of giving false evidence, by the court. Then the evidence given, be it information, a document or thing, cannot be used against the person. If the person still refuses to give evidence to the Coroner then they can be in contempt of court.

These provisions, as I said, are to address the current practice of shutting down the Coroner's investigations, often by large groups of public officials refusing to give evidence. Legal professional privilege is protected as usual, which is consistent with the findings in the recent SASC Bell v Deputy Coroner case. The bill also contains reforms that the Hon. Stephen Wade vigorously pursued while in opposition but did not achieve.

There have been issues in the past where it was alleged that the Coroner did not have the power to make the findings and recommendations that he did in a matter, which has constrained the Coroner from making findings and recommendations which could contribute to saving lives and preventing avoidable deaths into the future.

The bill, consistent with the one pursued by the Hon. Stephen Wade, seeks to amend the scope of recommendations that the Coroner is permitted to make in relation to an investigation. Thus the Coroner could identify systemic issues, practices, policies or the administration of justice that could be addressed and thereby prevent future deaths—recommendations that could be vital to preventing future deaths and injuries.

This bill will bring the SA Coroners Act in line with all other states and territories in Australia, where the power to investigate issues incidental to a death have existed for many years. The bill before you also improves government accountability, in the same way it was contemplated in the opposition bill in 2010—a mere 10 years ago. The Coroner can compel a minister to prepare a supplementary report, addressing concerns raised in a Coroner's report. That report would be required to be tabled in both houses of parliament within three months, with the government having to respond within this time frame, which is also consistent with the practices adopted in other jurisdictions.

The bill supports giving the Coroners Court the powers it needs to ensure early and decisive action to support systems, and improvements to reduce injuries, save lives and prevent future deaths in similar circumstances. I do not know what part of that we would not want to address. On that point, we task the Coroners Court with some of the most important work in our judicial system: investigating the death of our loved ones. Yet successive governments continue to grossly underfund the Coroners Court to the extent that it virtually runs on a shoestring budget.

More disturbing is the fact that many of its recommendations are virtually ignored by the lawmakers of this state. I, for one, believe that is not good enough, but I will leave that argument for another day and go back to the purpose of the bill itself. As the many families and friends who have had the deaths of a loved one investigated by the Coroner have told me over the years, they just want to know what really happened.

I have been involved in more coronial inquests than I care to think about or count, and I know the toll that these inquests take on families. It is absolutely heart-wrenching and, just as crucially, they want to ensure the same tragedy does not happen to anyone else and that no other family has to suffer as they have suffered.

I have every confidence that, having been pursued and supported by then opposition, now government, and previous government, now opposition, and my Greens colleagues on the crossbench in 2009, we can surely collaborate in 2020 to bring our South Australian Coroner's Act into the 21st century and into line with other Australian jurisdictions. With those words, I commend this bill to the council.

Debate adjourned on motion of Hon. J.E. Hanson.

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