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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-03-02 Daily Xml
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Coroners (Inquests and Privilege) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 18 February 2021.)

The Hon. C. BONAROS (17:08): I rise to speak in support of the government's Coroners (Inquests and Privilege) Amendment Bill 2020, inclusive of course of amendments that have been filed in my name. A 2009 bill introduced by the then opposition was negatived in 2012 during the Fifty-Third Parliament, so it is pleasing to see that the Attorney-General and the Minister for Health and Wellbeing have taken up the baton again, albeit a decade later. It is certainly my hope that we can all work together in a multipartisan approach to pass this bill, inclusive of amendments that have been proposed, with the support of the now government, opposition and crossbenchers.

The amendments I have filed arise from the private member's bill I introduced last year, the Coroners (Miscellaneous) Amendment Bill 2020. I will speak to my amendments later. I will also speak to Labor's amendments as they are dealt with, and I am pleased my bill has focused the government's attention on the seriously overdue need for reform of the Coroners Act 2003. As Oscar Wilde famously said, 'Imitation is the highest form of flattery,' and I am pleased the government has now acted.

Members interjecting:

The PRESIDENT: Order! I am having difficulty hearing the Hon. Connie Bonaros because there is too much audible noise in the chamber and towards its rear. I call the Hon. Ms Bonaros.

The Hon. C. BONAROS: But I am disappointed that it has not taken up from where it left off in opposition. The bill is a very much impoverished version of the then opposition's 2009 bill. It is a shadow of its former self and a retreat from several of the principles espoused by the government when in opposition. I have undertaken extensive consultation in developing my private member's bill and in considering the government's bill. This has included meeting with the past Coroner, the court's constituents, legal practitioners, academics and families of deceased persons, both here and interstate. They all agree that our Coroners Act needs to be brought into the 21st century.

As the Treasurer noted in his second reading explanation, without reform there is 'a real risk that the Coroner will not be able to conduct full and thorough inquests'. It has been very obvious for a very long time that this has been the case. The protections against self-incrimination and penalty privilege in the current legislation have too often resulted in the Coroner being unable to obtain critical information from witnesses. This has adversely impacted on the Coroner's ability to fully execute the role and exercise his powers. Consequently, Coroner's inquests have sometimes failed to meet community expectations that the Coroner will get to the bottom of the matter.

For many families, their motivation for calling for these changes is not to seek punishment—in fact, far from it—or retribution but rather to get answers and to prevent further deaths occurring in the same circumstances to that of their loved ones. The Bell v Deputy Coroner of South Australia [2020] SASC 59 matter confirmed the pressing need for this bill to give the Coroner the powers he needs and to ensure there is no doubt about his remit. It is an important provision in the government's bill.

As I have acknowledged, the government's bill is welcome, but I think it is very narrow in scope. Indeed, the second provision of the government's bill is to further limit the deaths a Coroner must investigate. It redefines a reportable death and when a Coroners inquest will not be held. It carves out where a death is to be excluded from the definition of a death in custody and thus does not require the Coroner to investigate it. The death of a person outside a psychiatric institution who has been subject to an order under the Guardianship and Administration Act or the Mental Health Act 2009 will not be investigated unless the Coroner exercises his discretion to do so.

I reflect on a discussion I had earlier today about the level of trust that we place in our Coroners. To date, we have been very fortunate that we have been able to trust that our Coroner will exercise his discretion favourably in terms of when those inquests ought to occur. However, there is always the very real risk that with a discretion there can arise opportunities where a death that the community might have expected would result in an inquest under this bill could not result in an inquest at all.

There has been some criticism of these provisions as a retrograde step, but by the same token I appreciate what it is that the government has been trying to achieve in this provision. This is probably the most problematic provision that I have with this bill. The death of the most vulnerable and least protected people in our community who live under these orders have been under the umbrella of the Coroners Act for a long time now and there have been many valid arguments as to why these provisions should be maintained.

Like the government's previous minor amendments to the Coroners Act, which concerned deaths by natural causes, reducing the circumstances in which the Coroner must conduct an inquest is frankly all about containing costs and limiting resourcing to the court. I have spoken at length in this place about the issues that the Coroners Court has had over years in terms of a lack of appropriate resourcing.

I think I moved a motion on this last year, indicating the lengths that the Coroners Court has previously gone to to save money: writing on folders in pencil instead of pen so they can erase them and reuse them, and asking families to bring in their own paper to print on, rather than having to provide them with paper when they are provided with reports and documents. There are all manner of tiny cost-saving measures that the Coroners office has undertaken for a very long time because they themselves have reiterated time and time again that the resourcing and funding available to the Coroners Court has been woefully inadequate.

The amendment of section 23 of the act is consistent with my private member's bill, which confirmed when legal privilege exists. Although worded slightly differently, the provisions in this bill regarding the privilege against self-incrimination and penalty provisions do the same work as my private member's bill proposed. They allow for the Coroner to compel a witness to answer a question if it is in the interest of justice, even where the answer tends to incriminate them or expose them to a penalty. The Coroner can then issue the witness with a certificate of indemnity from prosecution in other proceedings.

This provision is absolutely and well and truly overdue and very welcome. It brings South Australia in line with every other Australian jurisdiction. For many years, I have shared the frustration and disappointment of families of deceased persons when those responsible have been able to claim these privileges and the Coroners inquest has been effectively nobbled.

I want to now touch on the amendments. Amendment No. 1 clarifies that an event includes matters relating to or arising from an event or its aftermath. 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 the Coroner can investigate post-incident actions, such as reporting. The amendment legislates the findings in Bell.

Amendment No. 2 clarifies the jurisdiction of the Coroners Court to identify those involved in the 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 the Coroner can assess the accountability or responsibility of that party involved in the event. Previously, the Coroner was very limited in his jurisdiction and often found himself unable to fully perform his role. The recent chemotherapy bungle helped clarify the current law in regard to that jurisdiction. Again, my amendment means these powers are legislated and are beyond doubt.

Amendment No. 2 goes on to provide full legal representation for the senior next of kin in families of the person to whom the Coroners proceedings relate to appear, to examine and cross-examine any witness testifying in the proceedings. At present, family members have to apply and satisfy the court that they have sufficient interest in the subject or result of the proceedings. This has often been narrowly interpreted and my amendment puts it beyond doubt that the family has a right to legal representation. This is not a free-for-all for family members; it is limited to senior next of kin or, in the case of Aboriginal families, a culturally appropriate definition of family.

The Coroner can still exercise his discretion to allow for more legal representation of parties. The Coroner manages his own court and who he hears from. To be clear, the amendment notes that the cost of that legal representation can be applied for via the Legal Services Commission, with the usual LSC eligibility criteria to be applied by the LSC. It does not—and this is very important—compel the LSC or the Crown to provide this funding. It also does not remove the Attorney-General's discretion to approve funding for family members to be represented in the Coroner's jurisdiction, which is currently the practice.

At the moment, an application is made. If that family, for whatever reason, needs funding then they make a separate application to the Attorney. The Attorney then has the discretion to provide that funding. Nothing in this bill changes that, it just adds another layer of eligibility in terms of LSC funding as well. I should note also that this provision was one of the recommendations of our former Coroner, who said that there is a clear need for this to be enshrined in our legislation.

Amendment No. 3, findings on inquest, contains reforms the Hon. Stephen Wade vigorously pursued while in opposition. It is extremely important that they be passed as part of this suite of reforms as they are not in the 2021 version of the government's Coroners bill. There have been issues in the past where it was alleged that the Coroner did not have the power to make findings and recommendations that he did in a matter, which has constrained the Coroner from making key findings and recommendations that contribute to saving lives and preventing avoidable deaths in the future.

This amendment seeks to amend the scope of recommendations that the Coroner is permitted to make in relation to an investigation. It is an extremely important amendment. The amendment means that the Coroner can look at the quality of care, of treatment and of supervision of the deceased person prior to their death. The Coroner can also identify systemic issues and practices or policies or the administration of justice that could be addressed and thereby prevent future deaths. Such recommendations could be vital in preventing future deaths and injuries. This will bring the South Australian Coroners Act in line with all other Australian jurisdictions, where the power to investigate issues incidental to a death have existed for many years.

Amendment No. 3 also improves government accountability in the same way it was contemplated in the government's bill some nine years ago. The minister must, within six months of receiving the Coroners recommendation, lay on the table of both houses of parliament, within eight sitting days of the date, a report addressing concerns raised in a Coroners report, including details of any action taken or proposed and, if no action is to be taken, the reasons for this. The Coroner can also request a supplementary report within the same time lines. This is a crucial amendment because it means the Coroners recommendations have to be reported on by government. Coroners recommendations will no longer have good intent but no legislative muscle.

This is off the back of campaigning by Julie Wilson, who tragically lost her son and has found herself to this day still waiting for the implementation of recommendations that were scathing in terms of the police complaints handling processes in South Australia, and really were the catalyst for the bill that my former boss, Nick Xenophon, introduced in this place and that I took carriage of when I became a member of this place.

I cannot emphasise enough that we do all this work and put the resources that we do to the coronial jurisdiction and they do a huge body of work and then successive governments just ignore the recommendations: they just lay there and we do not do anything with them. At the very least, those families who have lost a loved one deserve to know the reasons that a government is not going to implement the recommendations of the Coroner, and that is precisely what this amendment seeks to achieve. The potential benefits of recommendations from a Coroners inquest will be fully realised, which, as I have noted, has been a very high priority of the Coroner, families of the deceased and the broader South Australian public.

On a recent episode of Australian Story on the ABC, entitled 'Landmines in the lounge room', Peter De Waard, counsel assisting the Queensland Coroner in the inquest into the death of a child from ingesting a button battery, expressed his frustration that five years after the death another child had died in similar circumstances. I am happy to say for the record that I have had ongoing discussions about that particular matter with the Attorney and I am pleased that she is looking at it. He said at the time, and I quote:

When I heard that there'd been another girl that died in circumstances that were almost a carbon copy to Summer's death, I was pissed off. Those organisations could have picked up these recommendations and run with them over five years ago. It wouldn't have taken a lot. What cost do you place on the lives of children?

In late 2020, the federal government said it would introduce safety and information standards for button batteries and products that contain them. These mandatory laws are a world first.

This amendment ensures that recommendations made by our Coroner, like the ones that apply to button batteries, would have to be reported upon by the South Australian government. If they are not implemented, then the government will need to provide the justification as to why they are not going to implement the recommendations. While they will not all be the same as the button battery example, they will nevertheless be brought to government's attention and require a response detailing what action, if any, is to be taken; and, if not, why not?

Finally, I am not going to move amendment No. 3—I am telling members this in the lead-up to the debate that is going to take place—in the form that it was filed on 1 March 2021. I do have an alternative amendment that I hope will be supported by the council. It provides that the Coroner may accord very limited, specific, basic rights of access to a file only by the senior next of kin of a deceased person where there has not been an inquest—so there have been inquiries but there has not been an inquest. While families are sometimes given visual access to a file under the current section 37 of the Coroners Act, others continue to be denied access.

One senior next of kin constituent who has been attempting to gain such access for decades is still waiting for a response to their most recent correspondence to the Coroners office, sent in October 2020, but I will speak to that more when we get to the amendment during the committee stage debate.

As 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 happened. I think that is a very fair ask. Just as crucially, they want to ensure that the same tragedy does not happen to anyone else and that no other family has to suffer as they have. They want to satisfy themselves the Coroner's decision to not conduct an inquest was sound.

The one aspect of the Coroners Court I have not been able to address in the amendments but have and will continue to work on is of course the lack of adequate resourcing, which I have already mentioned. Again, there is an absolute urgent need to better resource the Coroners Court and Forensic Science SA to address long delays in providing post-mortem reports and conducting and concluding Coroners inquests. There is also an urgent need for another Coroner in South Australia. Other jurisdictions are much better resourced and staffed on a per head of population basis, but this bill is silent on that issue. I think it is going to be an argument that will have to wait for another day.

In regard to the bill before us, though, I have every confidence that, this having been pursued and supported by the then opposition, now government—previous government, now opposition—and my Greens colleagues on the crossbench in 2009, we can safely collaborate in 2021 to bring our act into the 21st century.

I have probably worked with somewhere in the order of 13 coronial inquests. They are absolutely devastating for the families that are involved and devastating for everybody involved. But those families go through those processes because, like I said, they want to know what happened, why their loved one died and, perhaps even more so, they want to prevent that from happening to another family. They do not want another family to go through what they went through.

I mentioned Julie Wilson because she was the first case. Andrea Madeley from Voice of Industrial Death, now a lawyer in Adelaide, is also one after the death of her son Danny. I cannot articulate enough in this place how much I admire those families in terms of the strength and courage they showed in the worst of worst circumstances when they have lost a child, a loved one, whatever the case may be.

As I have said before in this place, I have given my word to those families that, while I am here, I will do absolutely everything to ensure that our Coroners Act in South Australia lives up to those expectations. I will not speak anymore now. I will have more to say when we move to the amendments themselves, but again I commend the Attorney for her work on this bill, for her openness to considering the amendments that have been proposed. I know there are a couple in there that are extremely contentious still, but I am hoping members will consider them in a favourable fashion. With those words, I commend the government for introducing this bill and look forward to a robust debate of its provisions as we progress.

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

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