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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-02-18 Daily Xml
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Bills

Coroners (Inquests and Privilege) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 12 November 2020.)

The Hon. K.J. MAHER (Leader of the Opposition) (15:18): I rise to speak on this bill and indicate I will be the lead speaker for the opposition. This bill seeks to amend the Coroners Act 2003 and the Guardianship and Administration Act 1993 to address two issues: firstly, to address the issue of penalty privilege for witnesses in the coronial jurisdiction; and, secondly, to amend the definition of 'reportable death' and the circumstances in which a coronial inquest must be held for a death in custody.

In relation to penalty privilege, it is often thought as protecting a person from giving evidence that may tend to incriminate themselves, but it also covers giving evidence that could expose a person to civil penalties and things such as workplace disciplinary matters. The current issue around penalty privilege arose from the tragic death in custody of 29-year-old Aboriginal man Wayne Fella Morrison in 2016. Mr Morrison was found unresponsive in a prison van at the Yatala Labour Prison, and he later died in hospital.

In the subsequent coronial inquest, 19 prison staff witnesses refused to answer questions from the Coroner claiming penalty privilege. This claim for penalty privilege was challenged in the Supreme Court in the case of Bell v Deputy Coroner. In this case, the Supreme Court of South Australia upheld the claim of penalty privilege by reasoning that a Coroner is unable to make findings or suggestions of criminal or civil liability under section 25(3) of the Coroners Act.

The bill seeks to overcome the use of penalty privilege in the Coroners Court by proposing to insert a new section 23A in the Coroners Act. The new section 23A relates to privilege in respect of self-incrimination and penalty to address the Bell case in relation to the Morrison inquest. The main impact of this amendment is that the Coroner, in effect, can issue a certificate that prevents the evidence given from being used in other proceedings.

This is consistent with how other jurisdictions around Australia treat issues of penalty privilege or privilege against self-incrimination in the coronial jurisdiction. The new section 23A does a range of things: it allows the Coroners Court to determine the reasonableness of an objection to answering a question or producing a record or document raised by a person at an inquest on the grounds it may tend to incriminate them or make them liable to a penalty in the workplace or under Australian or foreign law.

It provides that the Coroners Court may require that that person answer the question or produce the record or the document if the potential incrimination is in the interests of justice. It allows the Coroners Court to issue a certificate to the person both when the court requires them to answer a question or produce a relevant record or document, or if the person willingly answers this question or request.

It provides that such a certificate will prohibit the relevant answer, record or document or derivative evidence from being used against the person in proceedings. The one exception to the provisions I have just outlined relates to criminal proceedings about the falsity of an answer, record or document provided during an inquest. In this case, the witness may not be protected.

Addressing the operation of penalty privilege will assist the Coroner to investigate and report on the cause and circumstances of death. The compulsion of answers in the Coroners Court has some similarities to earlier debates that we have seen over the last couple of years in this place about open hearings for ICAC. In view of this, the opposition has moved amendments that will bring it in line with what happens in the ICAC jurisdiction. That is, the witnesses called to the Coroners Court will be notified that they may be required to answer questions and may wish to seek legal advice.

Further, that compelled answers are delivered in a closed court unless the witness asks for the court to remain open. Nothing in this bill or these amendments will prevent the Coroner from referring to compelled answers in their findings and reports, as it is in the ICAC jurisdiction. The Coroners Act outlines circumstances that are 'reportable deaths' about which the Coroner must be notified.

Reportable deaths include those that may benefit from investigation to avoid or minimise similar deaths in the future. They include deaths in custody; unexpected, unnatural or violent deaths; deaths in an aircraft during flight; or the death of a person under guardianship pursuant to the Children and Young People (Safety) Act 2017 or a protected person under the Guardianship and Administration Act. The Coroner may decide to undertake an inquest or the Attorney-General may direct the Coroner to do so.

The Coroners Act further outlines circumstances in which the Coroner must undertake an inquest, including deaths in custody as per section 21 of that act. The current section 21 states in part that if the Coroner thinks it is 'necessary and desirable' to hold an inquest or if the Attorney-General directs the Coroner to do so, they can hold an inquest in other circumstances. These other circumstances may include events such as fires or accidents that result in injuries and fatalities.

With regard to deaths in custody, these extend well beyond people who are in prison and include those who may be temporarily detained by the police or those who are detained under other arrangements. The bill seeks to clarify the arrangements that apply for people who die while under mental health or guardianship orders. Specifically, the bill amends the definition of a reportable death in section 3 of the Coroners Act to include the death of a patient in an approved treatment centre under the Mental Health Act 2009.

The bill then amends section 21 to clarify circumstances where the Coroner may hold an inquest if they deem it necessary and desirable. These include where a person dies from natural causes while subject to an order under the Guardianship and Administration Act. Further, these circumstances include where a person dies while under a Mental Health Act order but this happens in a ward of a hospital that is not exclusively set aside for mental health treatment.

The bill also adds subsections (4) and (5) to section 21. Subsection (4) outlines that death by natural causes of a person subject to an inpatient treatment order under the Mental Health Act and held in a ward of an approved treatment centre, where the ward is set aside for people for mental health treatment is to be taken as a death in custody. Subsection (5) states that deaths by natural causes of persons under orders of the Guardian and Administration Act will not automatically be taken as a death in custody, but the Coroner may still undertake an inquest if deemed necessary.

Subsection (5) goes on to clarify that the death by natural causes of a person subject to an inpatient treatment order under the Mental Health Act, and held in a ward for approved treatment that is not set aside for people having mental health treatment, is not automatically to be taken as a death in custody. This may occur when a person dies in an emergency room after suffering a heart attack, while also under a mental health order, for example. The bill also repeals section 76A of the Guardianship Administration Act to align with changes regarding death by natural causes.

The bill's amendments to section 21 are intended, the government tells us, to avoid unnecessary inquests, along with the consequent costs and delays that families may experience who may wish to farewell loved ones. While removing the obligation to undertake an inquest in these circumstances, the Coroner must still investigate such deaths if they view it as necessary or desirable. The opposition will consider its position on this bill as we look at amendments, the success of amendments the opposition has put up as well as amendments that crossbenchers have filed.

The ACTING PRESIDENT (Hon. T.A. Franks): The Hon. Mark Parnell.

The Hon. M.C. PARNELL (15:26): Thank you, Madam Acting President, and I congratulate you on your elevation and say that you have done an exemplary job thus far. The Greens will support this bill. April this year will mark 30 years since the Muirhead Commission into Aboriginal Deaths in Custody handed down a damning final report containing 339 recommendations for reform, including that 'imprisonment should only occur as a last resort'.

Since that time, 437 First Nations people have died in custody. That is almost 15 lives taken a year, 15 families a year torn apart. First Nations people continue to die in custody because state and federal governments have sat on many of those 339 recommendations, and they have sat on their hands for 30 years. Just this month, the Victorian parliament finally moved to decriminalise public drunkenness, a Muirhead recommendation prompted by the death in custody of Yorta Yorta grandmother Tanya Day in 2017.

The content of this bill, in one incarnation or another, has been kicking around both chambers of this place for decades, and the inaction on both sides of politics was made stark by the recent findings in the case of Bell and Others v Deputy State Coroner and Others, arising out of our state's recent tragedy—a recent and much-publicised shame—that is, the death of Wayne Fella Morrison, who was restrained by no less than 14 guards on 26 September 2016. This was a death that our state's Ombudsman, Wayne Lines, described as demonstrating serious shortcomings in our Department for Correctional Services.

As other members have discussed, the Deputy Coroner was hindered in their investigation of the extent of these serious shortcomings by the refusal to answer questions on the basis of the privilege against self-incrimination by 19 witnesses to the inquest: 18 guards and a nurse. The privilege against self-incrimination in law is important, but it is not absolute. As the Law Society of South Australia pointed out in their open letter to the Attorney-General on 19 August last year, the privilege against self-incrimination is a basic and substantive human right.

While the Law Society opposes this bill, I respectfully disagree with their analysis. The right to life is also a basic and substantive human right. Article 7 of the United Nations Declaration on the Rights of Indigenous Peoples states:

Indigenous individuals have the rights to life, physical and mental integrity, liberty and security of person.

Indigenous Peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence.

Article 38 of the declaration states:

States in consultation and cooperation with Indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration.

It is my view and the view of many others that First Nations people cannot live in freedom, peace and security, assured that they will not be subjected to acts of violence while in custody, when our laws unreasonably allow witnesses to shield themselves behind the cloak of the privilege against self-incrimination.

In an interview with SBS, published online on 6 February, Ngarrindjeri artist Cedric Varcoe spoke of the ripple effect that a death in custody has on the First Nations community:

Some of us feel like we've been born into it—the intergenerational traumas that have been passed down to us. It gives you depression, gives you bad mental health issues and makes you feel like you're not wanted by the wider community.

Cedric's installation artwork honouring those 437 lives lost in the last three decades, Contested Space, was recently on display at the Signal Point Gallery in Goolwa.

The ALP's proposed amendments to section 23 of the Coroner's Act do not entirely knock the shield from the hands of witnesses, but they do put a dent in it, in the interests of increased transparency regarding the causes of a death in custody.

The curtailing of the privilege against self-incrimination is not revolutionary. As the Treasurer told the house on 12 November last year, every other jurisdiction has a comparable section, albeit with subtle differences. For example, you can look at section 61 of the Coroners Act 2009 from New South Wales, or section 57 of the Coroners Act 2008 in Victoria.

State and federal governments have also limited the privilege under workplace health and safety legislation. For example, you can look at section 172(1) of the Work Health and Safety Act 2011 of the commonwealth.

If protecting the lives and safety of our citizens while on the job is sufficient justification for amending the scope of the privilege, surely facilitating greater transparency during inquests into deaths in custody is as well. Qualifying the privilege is not new. Less than 10 years ago, this parliament qualified the privilege against self-incrimination through the Independent Commissioner Against Corruption Act. I refer members to schedule 2 of that act.

Ian Freckleton QC has contributed to this debate in an editorial entitled 'The privilege against self-incrimination in coroners' inquests', which he first wrote back in 2015. He stated the privilege against self-incrimination is:

… often regarded as providing a crucial protection for individuals against oppression by the state or against an actual or potential abuse of power…

However the purpose of these amendments to the Coroners Act now is to ensure accountability regarding another potential source of oppression by the state: deaths in custody, which may also involve actual abuses of power.

Fifty years earlier, the famed jurist Justice Victor Windeyer stated in the case of Rees v Kratzmann in the High Court of Australia that the origins of this privilege arose, in small part, by 'a persistent memory in the common law of hatred of the Star Chamber and its works'.

This bill, however, strikes an appropriate balance. It is an amendment that does not ignore the memory of the arbitrary abuses of power in the Palace of Westminster centuries ago, but simultaneously does not turn away from the immediate injustices that periodically occur in our custodial systems.

The Coroner will be able to exercise their discretion when determining whether to compel the giving of evidence. Coroners will need to ask themselves whether such compulsion is in the interests of justice. I believe that that level of judicial discretion is appropriate, and I trust that it will be fairly exercised.

When we get to the committee stage of the debate, we will explore in more detail whether or not the proposed amendments further improve this bill. For now, the Greens are happy to support the second reading.

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

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