HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Subject Index
Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-03-16 Daily Xml
Contents
Pdf Xml

Bills

Coroners (Inquests and Privilege) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 2 March 2021.)

The Hon. R.I. LUCAS (Treasurer) (15:29): I would like to take the opportunity to thank members for their contributions during the second reading stage and look forward to further discussions as we move through committee. I will just make a few brief points in relation to some issues that members raised during the second reading.

To clarify for members, the current provisions in the Guardianship and Administration Act provide that where a person who is subject to certain detention orders under that act dies of natural causes, there is no requirement for a mandatory inquest. The bill is simply moving these provisions from the Guardianship and Administration Act into the Coroners Act.

We are not introducing new provisions in relation to persons who may be detained under the Guardianship and Administration Act. What we are doing is extending similar provisions to persons who are subject to an inpatient treatment order (ITO) under the Mental Health Act. That is, where a person subject to an ITO has died of natural causes, outside of a dedicated psychiatric ward setting, no mandatory inquest will be required.

I think it is very important to emphasise the point that these provisions only apply when the death has occurred from natural causes, where the existence of an ITO or other detention order is really just incidental. To give an example, this may be a person who has died of advanced cancer, who is subject to an ITO due to the effects of the disease or treatment causing delirium. These are not cases where there is any suggestion of something untoward occurring, or any suggestion of self-harm or other misadventure.

There is no reason in these clear-cut cases to subject the families and loved ones of the deceased person to a mandatory inquest. I know some emphasis has been placed on families who may desire an inquest, but in these cases where the cause of death is clear, a mandatory inquest would only add to the distress of the family by subjecting them to the drawn out process. Importantly, an inquest will still be able to be held where the Coroner considers it to be necessary or desirable, or where directed by the Attorney-General.

The second point I would like to make is in relation to the length of time that families may be waiting for an inquest. While multiple factors determine the length of any coronial investigation, one of the typical delays is the wait for a post-mortem report to be provided by Forensic Science SA following an autopsy. The government has taken steps to address this issue. As part of the 2019-20 state budget, the government committed to purchasing a new CT scanner for Forensic Science South Australia to bring South Australia in line with best practice in other states around the country.

An onsite CT scanner has been installed and in operation since July 2020 and now allows Forensic Science SA to use medical imaging technology to report a cause of death to the Coroner in approximately 30 per cent of cases. This will substantially reduce wait times for grieving families and ease delays in the justice system.

Funding has also been committed to the Coroners Court in the 2020-21 state budget, including funding for an additional Deputy Coroner and associated support staff for a period of 12 months. I was also pleased to see from the Coroners Court annual report for 2019-20 that significant progress has been made in clearing the backlog of matters. The number of inquests awaiting a hearing in the Coroners Court almost halved during the last financial year due to the court maximising its resources and hearing a large number of affidavit-only inquests.

The amendments in this bill reducing the number of mandatory inquests will further assist to reduce the delays in waiting for inquests. I thank honourable members for their contribution to the second reading of the bill.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 3 passed.

Clause 4.

The Hon. C. BONAROS: I move:

Amendment No 1 [Bonaros–3]—

Page 2, after line 14—Insert:

(2) Section 3—after subsection (2) insert:

(3) For the purposes of this Act, a reference to the circumstances of an event may be taken to include matters related to or arising out of the event or its aftermath.

This amendment simply seeks to clarify the scope of which circumstances the Coroner can investigate. It includes matters related to the event or arising from the event and also includes the aftermath of the event that is in question. It is a pretty straightforward amendment. I should say that all these amendments come off the back of very lengthy discussions, both with our former coroner and also with stakeholders in this area who have indicated that it would be beneficial to clarify what the scope of a coronial investigation is. There are a number of other amendments that have been drafted in a similar vein. Again, it is a very straightforward amendment and I hope it gets through.

The Hon. R.I. LUCAS: I am advised that we have been persuaded by the logic of the honourable member's argument. We are prepared to support the amendment.

The Hon. M.C. PARNELL: Just for the record, the Greens support the amendment. I will put on the record now, if it helps the committee, that we will supporting all of the Hon. Ms Bonaros's amendments.

The Hon. J.A. DARLEY: I will be supporting this amendment.

The Hon. K.J. MAHER: Again for the sake of the good operation of the committee, we indicate that we will be supporting all of the Hon. Connie Bonaros's amendments. We will be moving and supporting all of our own amendments, too.

Amendment carried; clause as amended passed.

New clause 4A.

The Hon. C. BONAROS: I move:

Amendment No 2 [Bonaros–3]—

Page 2, after line 14—After clause 4 insert:

4A—Amendment of section 13—Jurisdiction of Court

Section 13—after its present contents (now to be designated as subsection (1)) insert:

(2) In ascertaining the cause or circumstances of an event, the Coroner's Court is to promote the public interest in open justice which may include, without limitation—

(a) the public identification of a person, public sector agency or other organisation involved in the event, in particular in circumstances where it appears that such a person, agency or organisation caused or contributed to a death; or

(b) requiring a person, public sector agency or other organisation to provide information about and explain their action or inaction in the circumstances of the event; or

(c) assessing, subject to this Act, the accountability and responsibility of a person, public sector agency or other organisation involved in the event.

In the interests of time, and given we have an understanding of where members sit in this matter, I will briefly explain that this amendment deals with the jurisdiction of the court. It makes the jurisdiction of the court clear so that it cannot be challenged later in the courts. It can require a person or public sector agency to provide information and can assess their accountability in the event. It is much wider than at present. It has been one of those issues that has been called on over many years—by the government, indeed, while they were in opposition, and of course also by the previous coroner.

The Hon. R.I. LUCAS: I am advised that the Hon. Ms Bonaros's logic and argument has persuaded the government, so we will support new clause 4A, the amendment as it has been moved. I am advised that the government's view is that the amendment does not expand the existing jurisdiction of the Coroners Court; rather, it acts to provide some clarity to the issues that the Coroner may examine when taken together with the earlier amendment to section 3. Therefore, as indicated, the government will support this amendment.

The Hon. C. Bonaros's new clause inserted.

New clause 4A.

The Hon. K.J. MAHER: I move:

Amendment No 1 [Maher–1]—

Page 2, after line 14—After clause 4 insert:

4A—Amendment of section 19—Inquests to be open

Section 19(1)—after 'or to' insert:

this Act or

I indicate that this amendment is consequential on the passage of the next amendment that I have. If this amendment fails I will not be moving amendment 2 [Maher-1]. I indicate that the two sets of amendments that we have—amendments Nos 1 and 2 and then amendments Nos 3 and 4—are designed to bring into line the operation of a jurisdiction that can compel witnesses to give evidence with what was the view of this chamber when we were considering amendments to the ICAC Act.

There are some significant similarities between the two regimes that apply under ICAC and under the Coroner's jurisdiction. As a consequence of what this bill seeks to do, it clarifies what was thought, I think, by most to be the case and it allows the Coroner to compel witnesses to give evidence even if it is against their own interest, whether that be in criminal or civil liability or in terms of some other penalty in terms of employment disciplinary proceedings.

We think that is a right and proper course to take and the Coroner can issue that certificate to effectively say, 'It cannot be used against you in any other proceedings.' That is similar to what the ICAC Act can do. The ICAC Act can compel a witness to give evidence against their own interest, and the ICAC Act also provides similarly that such evidence cannot of and in itself be used against a person in any other sort of proceeding.

When there was an amendment bill in this chamber previously it was the will of the chamber that there ought to be some form of protection for witnesses who are compelled to give such evidence in an open court. What that previous ICAC bill sought to do was to open up proceedings of ICAC. What this chamber decided then was that in an open setting where it can be reported on freely by the media, where it is not done in a closed court, that there ought to be some basic levels of protection; that is, rules of evidence, principles of natural justice apply given the open nature of the ICAC hearings that were proposed. The ICAC Act amendments to the open hearings required notice to be given to potential witnesses about what their rights were and that they may seek legal advice.

Our first amendments are quite simply a requirement that potential witnesses are provided a notice that they may wish to seek legal advice, and when we go further on—and I will speak more to them in the not too distant future—amendments Nos 3 and 4 require that where the Coroners Court is going to compel someone to give evidence and issue such a certificate that it not be done in open court and that the Coroners Court be effectively closed in those circumstances, to bring it into line with what was the view of the chamber when we were considering the ICAC amendment bill.

The Hon. R.I. LUCAS: My advice is that Maher amendment 1 closely aligns with Maher amendments 3 and 4. I note the honourable member has spoken of his view that it is connected to Maher 2, but it may well be the member is going to look at all his amendments—1, 2, 3 and 4—as connected. However, I will provide the advice I have been given in relation to why the government is opposing the package of amendments 1, 3 and 4, and for the following reasons we will be opposing the amendments.

Again, the government sought the views of the State Coroner and the State Coroner has advised that he has serious concerns about the disruptions to inquest proceedings that this amendment would cause, with the existing judicial authorities for claims of privilege against self-incrimination to be considered on a question-by-question basis. Therefore, if each time a witness was asked a question and then compelled to give evidence and a certificate granted, it would considerably slow down proceedings if the room is also then required to be cleared of family, supporters, members of the public and media representatives.

There is also public interest in the subject matter of the proceedings being public and able to be reported on by the media. If the aim of these amendments is to stymie the ability of the media to report on the proceedings, a suppression order may actually be required to prevent all publication of the evidence. Therefore, every time the court was closed, a suppression order would likely need to be considered, further slowing the process.

The Coroner also points out a further public interest in maintaining an open court for compelled evidence. He states that it is conceivable that the evidence given may be untrue or disputed. Media reporting of such evidence may serve to notify those persons who can expose the untruthfulness of the evidence and encourage them to come forward. He expresses that this is a legitimate hope in a coronial inquest, the function of which is an inquiry into the true circumstances of a death so that similar deaths can be prevented in the future.

The Coroner advises that any potential personal embarrassment to a witness or prejudice to a future criminal trial can already be adequately addressed with a suppression order, as required. The amendments are also contrary to the spirit of section 19 of the act, which states that inquests should be open to the public subject to part 8 of the Evidence Act 1929 and the interests of national security.

I think it is also worth pointing out that this type of requirement does not exist for other court proceedings. Directions hearings or voir dire hearings on the admissibility of confessions or of other evidence are conducted in open court during criminal trials. The protection for witnesses or defendants in those cases is that the proceedings are not published.

In the government's bill, witnesses who are compelled to give evidence that may incriminate them or expose them to a penalty are protected by the availability of suppression orders where appropriate and also by the certificate system that will ensure that the evidence cannot be used against that witness in other proceedings. In the government's view, no additional protection measures are required. It is for those reasons the government will be opposing the amendments.

The Hon. M.C. PARNELL: The Greens looked long and hard at these amendments because, as the Hon. Kyam Maher said, they were drafted in a way to be consistent with similar evidentiary provisions that were included in the ICAC Act. What has ultimately got the Greens over the line in relation to opposing the amendment is the feedback from the Coroner that these amendments collectively will have unintended consequences.

The amendment that is before us, as the Treasurer pointed out, will result in significant disruptions to inquest proceedings. There are other amendments, which the honourable member may not move if he sees the numbers in the room, where the Coroner has talked about unintended consequences significantly impairing the ability of the Coroner to conduct thorough inquests. On the back of that feedback, I do not think that the advantages to justice, as the honourable member sees these amendments, outweigh the disadvantages to the practical conduct of these coronial inquiries. The Greens will not be supporting the amendment.

The Hon. J.A. DARLEY: I will not be supporting these amendments.

The Hon. C. BONAROS: It does not matter what I do now. I appreciate where the Hon. Kyam Maher is coming from, particularly with respect to the ICAC Act, but I think it is very difficult not to be persuaded by the Coroner in this instance, particularly in relation to the serious disruptions that the Treasurer talked about.

Perhaps more importantly for me, in relation to the true circumstances of someone's death and preventing future deaths of the same nature, that is overwhelmingly the priority of the Coroner and we need to be doing everything we can to promote that concept. If the Coroner has grave concerns about these amendments, then despite, I think, the best intentions of the honourable member, we would not be in a position to support them.

The Hon. K.J. Maher's new clause negatived.

New clause 4B.

The Hon. C. BONAROS: I move:

Amendment No 2 [Bonaros–3]—

4B—Insertion of section 20A

After section 20 insert:

20A—Right of appearance for nominated representative of families

(1) This section applies to proceedings before the Coroner's Court relating to the death or disappearance of a person.

(2) Without limiting any other provision of this Act, the nominated representative of the family of a person to whom proceedings to which this section applies is entitled to appear in those proceedings and may examine and cross-examine any witness testifying in the proceedings.

(3) The reasonable legal costs of the nominated representative may be the subject of an application for legal assistance under the Legal Services Commission Act 1977 which is to be determined in accordance with that Act.

(4) For the purposes of this section, a reference to the nominated representative of a family will be taken to be a reference to a legal practitioner—

(a) engaged by or on behalf of the family to represent them in particular proceedings; and

(b) nominated, in accordance with any rules of the Court, by the family as their nominated representative.

(5) In this section—

Aboriginal or Torres Strait Islander person means a person who—

(a) is a descendant of the indigenous inhabitants of Australia or the Torres Strait Islands; and

(b) regards themself as Aboriginal or Torres Strait Islander or, if they are a child, is regarded as Aboriginal or Torres Strait Islander by at least 1 of their parents;

adult means a person of or over the age of 18;

domestic partner means a person who is a domestic partner within the meaning of the Family Relationships Act 1975, whether declared as such under that Act or not;

family, in relation to a person, means—

(a) the person's senior next of kin; and

(b) in relation to an Aboriginal or Torres Strait Islander person, includes any person held to be related to the person according to Aboriginal kinship rules, or Torres Strait Islander kinship rules, as the case may require;

parent of a child includes a guardian of the child;

senior next of kin for a deceased person or person who has disappeared means—

(a) the spouse or domestic partner of the person (and if the person had more than 1 spouse or domestic partner, the person's most recent spouse or domestic partner);

(b) if the person did not have a spouse or domestic partner or if they are not available—any adult child of the person;

(c) if the person did not have a spouse, domestic partner or adult child or if they are not available—a parent of the person;

(d) if the person did not have a spouse, domestic partner, adult child or living parent or if they are not available—any adult brother or sister of the person;

(e) if the person did not have a spouse, domestic partner, adult child, living parent or adult brother or sister or if they are not available—

(i) any person who is named as an executor in the person's will; or

(ii) any person who was the person's legal personal representative immediately before the person's death or disappearance;

spouse—a person is the spouse of another if they are legally married.

This is going to be interesting for me to argue. This amendment is aimed at giving a limited right to the senior next of kin to have legal representation, rather than the Coroner or the Attorney of the day deciding this question on their own. Legal counsel would also be able to examine and cross-examine witnesses.

I have to say that this amendment has been drafted I do not know how many times to try to appeal to the government's good senses, but under the current drafting we have said that they could apply to the Legal Services Commission for funding. The Legal Services Commission, of course, can still decide, or will have to decide, if they are eligible for funding, and it does nothing to diminish the Attorney's ability to provide funding for legal representation. There is nothing in here that compels the LSC to fund the representation either. It just points out that this is an option, rather than the Crown funding representation.

I am sure the government will argue that it does not matter whether it is the LSC or the Attorney-General, the money is still coming out of the government's pockets. I accept that, but I think it is important to note that this was one of the key recommendations of the former Coroner in relation to, I suppose, enshrining in legislation the right of appearance for nominated representatives of families.

We have gone some way to limiting who those family members might be, so we have a definition that applies specifically to senior next of kin and a definition that applies specifically to Aboriginal and Torres Strait Islander persons in the amendment. I suppose this is my last-ditch attempt at trying to convince the government that I do not think the cost of legal representation ought to be the primary consideration. I think that ensuring that those family members who have lost someone ought to have a seat at the table when an inquest is being held into the death of one of their loved ones is.

I can say from experience that I do not think I can point to a particular case where that has ever been declined, that I have been involved in, certainly. I have worked on a few cases now where family have had that representation. In some instances, they have also made applications to the Attorney of the day seeking for their legal representation to be paid for by the government. I think in at least two of those cases that I can recall—or maybe three—the Attorney of the day did indeed provide that funding.

I suppose it also depends on what the Attorney of the day deems as the prerequisites for providing that funding. If they set the benchmark too high, then those who can otherwise not afford to have legal representation will not have legal representation. Again, if we are just thinking about the jurisdiction of the Coroners Court and the sorts of cases that we are dealing with, I think it is accepted that the family of a deceased can have a lot to offer in terms of the coronial inquest.

That is not to say that counsel assisting is not going to do an exemplary job and ask all the right questions, but it is important, I think, also for families to be involved. I think the former Coroner identified that as something that ought to be included in these reforms. For that reason, I am urging all honourable members to support it.

The Hon. R.I. LUCAS: The honourable member and the government have been on a unity ticket, but sadly it looks like just for this brief moment there will be an aberration. Members earlier advised that they were all supporting the honourable member's amendment, so I am a realist. I hope maybe, if I can share the Attorney-General's and the government's what to me at least seems and looks to be very persuasive logic, it might lead at least the Hon. Mr Parnell as he looks for legacy issues.

I would like to see an occasion where, having listened to a debate and the government's response, he says, 'As one of my final legacy issues, the logic of the Attorney-General has convinced me to change my position midstream and I now indicate'. Anyway, let me try at least one last time with the Hon. Mr Parnell.

The government indicates it will oppose new clause 4B insofar as it inserts new section 20A. There is currently no inherent right of appearance before the Coroners Court, aside from the Attorney-General. Under section 20 of the act, every person seeking to appear must make an application to the court and satisfy the court that they have a sufficient interest in the subject or result of the proceedings. Whilst family members of a deceased person are, for obvious reasons, invested in the outcome of the coronial inquest, it does not follow that a nominated representative of the deceased family should be required to appear before the inquest and examine or cross-examine witnesses.

Further, as section 20A expressly does not limit any other sections of the act, and therefore does not purport to exclude the operation of section 20, the amendment is likely to have little practical effect. The nominated representative would still need to have a sufficient interest in the subject or outcome of the inquest in order for the court to allow the family members of the deceased person to appear in proceedings where they have made an application.

Furthermore, it is unclear how the provision would operate if there was some conflict within the family about who was to be the nominated representative or if different family members wanted to have different representatives. I think we have all been aware of cases where families are not always united of purpose in relation to these situations, so those who are supporting this are going to need to address and think through the potential consequences of the amendment.

The other part of new section 20A that is of concern is subsection (3), which purports to allow the legal costs of the nominated representative to be the subject of an application for legal assistance to the Legal Services Commission. The Legal Services Commission sets its own funding guidelines and criteria as to what types of legal matters are eligible for assistance. It is the government's understanding that appearing before the Coroners Court would not ordinarily be approved for legal assistance and, as the Legal Services Commission sets their own eligibility criteria, simply including this provision in the act would not allow or compel the Legal Services Commission to fund these types of matters.

The government is concerned that, to the public at least, this amendment appears to require the Legal Services Commission to fund these matters when, in the government's view, that is not the case. I repeat: the government's advice to the committee is that there is no requirement on the Legal Services Commission to act in response to this particular remit should it be passed.

For all those very persuasive reasons from the Attorney-General and learned legal counsel, I ask members to reconsider. In the absence of their reconsideration, I acknowledge on previous indications that the Labor Party and the Greens are supporting SA-Best's amendment and that is enough to see the passage of this amendment at least through this house of parliament.

The Hon. M.C. PARNELL: I acknowledge the Treasurer's desire to try to get the Greens over the line. Of course, we always listen to the debate—it is what we always do. Like other members, if information that we have had turns out to be wrong, then we reserve the right to change our opinion. In this case, there are a couple of issues.

The first thing I would do is acknowledge the Hon. Connie Bonaros's long professional experience in this jurisdiction. While she has been a member of this chamber for a number of years, for a number of years before that she worked in political office, and it was an office that had a lot to do with the families of people who had died and where there were coronial inquests. I have not been personally to a Coroners Court inquiry, but I know the Hon. Connie Bonaros has a lot of experience.

The second thing I will say is that whenever I hear from the government words to the effect of, 'We don't like this, and anyway, it doesn't seem to do much,' that then raises the point, if it is not doing much, there is probably no harm in letting it go through. You cannot have it both ways, really.

The third thing I would say is that, as the Hon. Connie Bonaros pointed out and as the Treasurer alluded to, proposed subsection (3) states:

(3) The reasonable legal costs of the nominated representative may be the subject of an application for legal assistance under the Legal Services Commission Act 1977 which is to be determined in accordance with that Act.

It seems pretty clear to me that we all know that legal aid is underfunded. We all know that the Legal Services Commission will determine, according to its own guidelines, who does and who does not get legal aid. In some ways, if there is a redundant provision, it is possibly this one. It says they can apply for legal aid. Yes, anyone can apply for legal aid. It does not mean you are going to get it. I do not think that that subsection is a reason to oppose this clause.

Probably the best argument the Treasurer had is in relation to divided families—let's put it another way: families where there is disagreement as to who ought be the representative, which family member, which lawyers do they use. I can see that that is potentially a problem, but probably nine times out of 10 it will not be. My view would be, let's give this a go. If it turns out to be a major stumbling block where lots and lots of families, having the right of representation for the first time, turn out to be internally divided, and if it turns out to be a real live issue, then perhaps bring it back and we can look at it again. For now, the Greens are still inclined to support the Hon. Connie Bonaros's amendment.

New clause inserted.

New clause 4C.

The Hon. K.J. MAHER: I move:

Amendment No 2 [Maher–1]—

Page 2, after line 14—After clause 4 insert:

4C—Insertion of section 20A

After section 20 insert:

20A—Notice to witnesses

The Coroner's Court must, at least 28 days before the commencement of an inquest or such shorter period determined by the Court to be appropriate in the circumstances, provide each witness in the inquest with a notice setting out that the witness may—

(a) be required to answer a question, or produce a record or document, that may tend to incriminate the witness in respect of, or make the witness liable to a penalty under, an Australian law or a foreign law; and

(b) wish to consider obtaining legal advice.

New clause negatived.

Clauses 5 and 6 passed.

Clause 7.

The Hon. K.J. MAHER: I move:

Amendment No 3 [Maher–1]—

Page 5, after line 4 [inserted section 23A(3)]—After paragraph (c) insert:

(d) that, if the person is required to answer the question, or produce the record or document, under subsection (4), the Court will be closed while any evidence relating to the question or production of the record or document is adduced, unless the person indicates to the Court that they agree to it remaining open.

I foreshadowed the purpose of this amendment when I moved my first two amendments, amendments Nos 1 and 2 [Maher-1]. This is, again, to bring the operation of the Coroners Court into line with what the view of this chamber was in relation to proposed amendments to the open operation of ICAC; that is, where a person is compelled to give evidence against them, either the general rules of evidence apply or it is held in a closed court.

I note that the Treasurer, in making analogies to how this works with court proceedings, did refer to criminal court proceedings where they can be held in open, and that is true, but then all the rules of evidence, the rules of whatever court it is apply, principles of natural justice apply to what happens in those open hearings. They do not here. People are compelled to give evidence against their own interests without any of those other protections applying in a criminal jurisdiction.

In trying to explain this, I think the Treasurer on that occasion is trying to have it both ways, saying, 'No, it's fine in criminal courts,' but of course in criminal courts there are all those protections, including the rules of evidence, including the rules of court, that apply when you are giving evidence, but in the Coroner's jurisdiction those same protections are not applicable, yet it is in open court. I just do not think it is a fair comparison.

The Hon. R.I. LUCAS: For the reasons I outlined earlier, we see this as consequential to an earlier vote. We are opposing the amendment.

Amendment negatived; clause passed.

New clause 8.

The Hon. C. BONAROS: I move:

Amendment No 3 [Bonaros–3]—

Page 6, after line 10—After clause 7 insert:

8—Amendment of section 25—Findings on inquests

(1) Section 25(2)—delete subsection (2) and substitute:

(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) relates to a matter arising from the inquest, including (but not limited to) matters concerning—

(i) the quality of care, treatment and supervision of the dead person prior to death; and

(ii) public health or safety; and

(iii) the administration of justice,

and is, in the circumstances, an appropriate matter on which to make a recommendation.

(2) Section 25(4)(a)—after 'Attorney-General' insert:

and any relevant Minister other than the Attorney-General

(3) Section 25(4)(b)(i)—delete subparagraph (i)

(4) Section 25(5)—delete subsection (5) and substitute:

(5) Each relevant Minister must, within 8 sitting days of the expiration of 6 months after receipt of a copy of a recommendation resulting from an inquest—

(a) cause a report to be laid before each House of Parliament—

(i) giving details of any action taken or proposed to be taken in consequence of the recommendation; or

(ii) if no action has been taken or is proposed to be taken—giving reasons for not taking action or proposing to take action; and

(b) forward a copy of the report to the State Coroner.

(6) The State Coroner may, at any time after the provision of a report under subsection (5), request a supplementary report to be prepared by the Minister that addresses any matter that the State Coroner considers necessary arising out of the report.

(7) If the State Coroner makes a request under subsection (6), the Minister to whom the request was made must, within 8 sitting days of the expiration of 6 months after receiving the request—

(a) cause a supplementary report to be laid before each House of Parliament addressing the matters requested to be addressed by the State Coroner; and

(b) forward a copy of the supplementary report to the State Coroner.

(8) In this section—

relevant Minister, in relation to findings and recommendations of the Court, means—

(a) if a recommendation is directed to a Minister, or to an agency or other instrumentality of the Crown, as a result of the inquest—the Minister to whom, or the Minister responsible for the agency or other instrumentality of the Crown to which, the recommendation is directed; or

(b) in any other case—the Attorney-General.

This amendment is, for me, probably the most important and the one that has formed the basis of several bills before this place. It started off following the death of Christopher Wilson and the findings on that matter.

It clarifies that the Coroner can, firstly, make a broader range of recommendations if the Coroner thinks that might prevent or reduce the likelihood of a recurrence of an event. They can look at a broader range of matters that relate to the circumstances around the care, around the treatment and so forth, of the person and the circumstances generally around somebody's death. That is a very important element of this amendment.

The amendment then goes on to provide a level of accountability when there are findings following an inquest, and that level of accountability kicks in in terms of the reporting requirements regarding any recommendations the Coroner makes. It provides that each relevant minister must, within eight sitting days of the expiration of six days after receipt of a copy of a recommendation resulting from an inquest, do one of two things. They have to cause a report to be laid before each house of parliament giving details of any action taken or proposed to be taken in consequence of the recommendation or, and importantly, where no action has been taken or is not being proposed to be taken by the government of the day there will be a requirement that they give their reasons for not taking any action or proposing to take any action.

A copy of the report has to be forwarded to the Coroner, and the State Coroner may, at any time after the provision of the report, request a supplementary report to be prepared by the minister that addresses any matter the Coroner considers necessary arising out of the report. If the Coroner makes a request, then the minister to whom the request is made has, again, eight sitting days after receiving the request to cause a supplementary report to be laid before each house of the parliament and forwarded to the Coroner.

As I said, this is a key amendment because, as we know, in the Christopher Wilson case there were a number of recommendations, very important recommendations, that were made in relation to our police complaints handling procedures that went ignored—and that continue to go ignored, in fact, to this day. Julie Wilson, bless her, has advocated for years for these provisions to come in, and I think the least we can do in this jurisdiction is, when we have the Coroner, whose sole function is to hold these inquests and determine, where they can, the circumstances leading to somebody's death and preventing future deaths, for the government of the day to at least respond.

If they are not going to implement the recommendations of the Coroner, then the very least they can do is respond to the parliament but, more importantly, to those families regarding why they are not going to be taking any action. If there is a justification for not taking any action on the part of any government then there is absolutely no reason why they would not want that to be provided to the family.

I think what is missing here is the closure that that would provide for those families as well. They have gone through this process. They know very it is a very important process. There is a list of recommendations that may be made by a Coroner, and then they just sit there and nothing happens to them. The families never get any answers as to why nothing is going to happen, why those recommendations are not implemented.

It baffles me that we have the Coroner holding inquests and making recommendations, making findings as to changes that we could be implementing to prevent future deaths or future similar situations from arising, and yet if the government of the day chooses to do nothing then that is the end of the matter.

I mention Julie in particular because it is one of those cases that has stayed with me. Julie has done absolutely everything in her power to make sure that these changes finally come into play. I should say to those members who do not know, Julie did not just lose one son as a result of the murder of her son. She lost both her sons because, shortly after Christopher was murdered, her other son could not bear the loss of his brother anymore and, ultimately and very sadly, he also passed away. He took his life because he could not live with the consequences of what he had seen happen to his brother.

So I have all the admiration in the world for Julie Wilson for the advocacy that she has managed to achieve over so many years, not in the name of just one of her sons but both of her sons, I think it is fair to say. Again, I am very grateful to everybody who is supporting this amendment and look forward to its passage, finally.

The CHAIR: My advice is that new clauses 8 and 9 are unrelated, so they can be put separately if that is the wish of the committee.

The Hon. R.I. LUCAS: We will just address new clause 8 and then we can address new clause 9. I will not speak at length in relation to new clause 8. The Attorney-General in particular wants to place on the record her thanks to the honourable member for making the changes in this new clause 8. As a result of the negotiations between the Attorney, her officers and the honourable member, the government is prepared to support these amendments in new clause 8.

New clause inserted.

New clause 9.

The Hon. C. BONAROS: I move:

Amendment No 3 [Bonaros–3]—

After new clause 8 insert:

9—Insertion of section 37A

After section 37 insert:

37A—Release of records to family when no inquest held

(1) Subject to this section, the State Coroner must, unless the State Coroner is satisfied that it is not in the interests of justice to do so, on application by the family of a person the subject of an event in relation to which the State Coroner determines an inquest is not to be held under this Act or an earlier enactment (whether the determination was made before or after the commencement of this section), provide to the applicant a copy of all records held by the State Coroner in respect of the event.

(2) An application may only be made under subsection (1) in respect of an event in relation to which the State Coroner determines an inquest is not to be held—

(a) if the event is a reportable death—after the expiration of 20 years following the making of a finding as to the cause of death or a finding that the death was due to undetermined natural causes; or

(b) in any other case—after the expiration of 20 years following the determination that an inquest is not to be held in relation to the event.

(3) The ability of a person to make an application under this section does not derogate from the ability of the person to make an application under section 37.

(4) For the avoidance of doubt, records that may be provided under subsection (1) include the following:

(a) material that was not taken or received in open court;

(b) a photograph, slide, film, video tape, audio tape or other form of recording from which a visual image or sound can be produced;

(c) material of a class that is prescribed by the regulations pursuant to section 37(2)(d).

(5) Material that has been suppressed from publication under this Act or any other Act (subject to that other Act) may only be provided under this section if the State Coroner is satisfied that it is in the interests of justice to do so.

(6) The State Coroner may provide a copy of records under this section subject to any condition the State Coroner considers appropriate, including a condition limiting the publication or use of the records.

(7) If a copy of a record to be released under this section identifies an individual, the State Coroner may redact or otherwise modify the copy of the record to the extent necessary to remove the identity of the individual from the copy if satisfied that the interests of justice require it in the circumstances of the particular case.

(8) The State Coroner may not charge a fee in relation to—

(a) an application for the provision of copies of records under this section; or

(b) the provision of copies of records under this section.

(9) In this section—

Aboriginal or Torres Strait Islander person means a person who—

(a) is a descendant of the indigenous inhabitants of Australia or the Torres Strait Islands; and

(b) regards themself as Aboriginal or Torres Strait Islander or, if they are a child, is regarded as Aboriginal or Torres Strait Islander by at least 1 of their parents;

adult means a person of or over the age of 18;

domestic partner means a person who is a domestic partner within the meaning of the Family Relationships Act 1975, whether declared as such under that Act or not;

earlier enactment means—

(a) the Coroners Act 1975; or

(b) the Coroners Act 1935; or

(c) any other Act or law of this State providing for the holding of an inquest into the death or disappearance of a person;

family, in relation to a person, means—

(a) the person's senior next of kin; and

(b) in relation to an Aboriginal or Torres Strait Islander person, includes any person held to be related to the person according to Aboriginal kinship rules, or Torres Strait Islander kinship rules, as the case may require;

parent of a child includes a guardian of the child;

senior next of kin for a person the subject of an event in relation to which the State Coroner determines an inquest is not to be held means—

(a) the spouse or domestic partner of the person (and if the person had more than 1 spouse or domestic partner, the person's most recent spouse or domestic partner);

(b) if the person did not have a spouse or domestic partner or if they are not available—any adult child of the person;

(c) if the person did not have a spouse, domestic partner or adult child or if they are not available—a parent of the person;

(d) if the person did not have a spouse, domestic partner, adult child or living parent or if they are not available—any adult brother or sister of the person;

(e) if the person did not have a spouse, domestic partner, adult child, living parent or adult brother or sister or if they are not available—

(i) any person who is named as an executor in the person's will; or

(ii) any person who was the person's legal personal representative immediately before the event in relation to which the State Coroner determines an inquest is not to be held;

spouse—a person is the spouse of another if they are legally married.

This aspect of the amendment deals with the release of records to families where no inquest has been held. Again, it is one of those where we have been back and forth with the Attorney for some weeks now, trying to reach a resolution. Basically, there is a two-step process to the coronial inquest: the Coroner will have an inquiry first and, off the back of the inquiry, will determine whether an inquest is necessary. Inquests are not always necessary. Where they have had an inquiry, though, they will have in their possession a lot of material that relates to the death of an individual.

Where there is no inquest, I suppose there are many families who are left with a lot of unanswered questions, knowing full well that there is a body of material that is in the possession of the Coroner and that could potentially go a long way towards answering a lot of their questions in relation to the death of a loved one. It is certainly very different to the final product that the family will receive from the Coroner in terms of the information they receive around the death.

The intent of this amendment is to only apply to those instances where there has been an inquiry but not an inquest held. It will give families, senior next of kin, additional rights to access information in specific circumstances in addition to those already in section 37 for the general public. Specifically, it is important to mention that it covers materials, as I said, where an inquest has not been held, which section 37 does not actually cover at the moment. It does not prevent section 37 from applying. This is purely in addition to the provisions that apply or to the material that can be disclosed under section 37.

The Coroner, even under this amendment, still maintains the ability to not release the information. The clause cannot kick in before a 20-year time frame has elapsed from the date of the inquiry. If there were to be a death and there were not to be an inquest and 20 years pass, then a senior next of kin, as defined in this section—it is the same definition that we have put in the previous provisions—would be able to have access to the information that they are seeking.

There is nothing preventing someone now from going to the Coroner and seeking access to information; in fact, it happens all the time. It is important to note that it is not just family members who go to the Coroner. Journalists and reporters are probably the next group of individuals who go to the Coroner, and perhaps authors of books would also go to the Coroner's office to seek information. One practice that we know the Coroner does undertake at the moment is to allow access to information in the court's jurisdiction for viewing. That means I can get approval from the Coroner to go in to sit down to review the material, but I cannot take anything with me.

This amendment is specifically aimed at those families who want to see what the material says in relation to the death of a loved one. I appreciate that this amendment is probably more contentious than any of the others. It comes off the back of work that my colleague has been doing with a family, where over 20 years have passed and they still cannot get any closure and still have not been able to get access to information that the Coroner has—information that I think will go a long way towards alleviating their concerns and providing them with the closure they need as well.

For those reasons, I urge honourable members, or the government really, to consider the amendment and just note again that it is quite restrictive in terms of what they can have access to, the Coroner will maintain discretion over what they can release and, importantly, there is absolutely nothing in here which will prevent the Coroner from redacting or modifying those records when they are released.

If there is information in that material that the Coroner thinks should not be provided to family members then, in the first instance, they can refuse to provide them altogether and, in the second instance, they can redact or modify the records so as to ensure that those parts of the record that potentially would identify an individual or anything else are not included in the final copy of what is given to the, again, very limited definition of who would be deemed suitable as a family member.

The Hon. R.I. LUCAS: The government opposes the amendment for the following reasons, but in doing so the Attorney advises me that we acknowledge the honourable member's continued efforts to revise this particular clause to address various issues the government has raised with the same, as I think the honourable member has outlined in her contribution.

This clause seeks to provide that the Coroner must, on application by a member of the family defined as a senior next of kin or other family member in the case of Aboriginal or Torres Strait Islander persons of the deceased person, provide them with materials held by the Coroner in relation to a matter where an inquest was not held either because it was determined by the Coroner that an inquest was not required or because the act otherwise does not require an inquest.

The amendment further provides that the material must be released after a 20-year period and includes material that was not taken or received in open court. It also includes a photograph, slide, film, videotape, audiotape or other form of recording from which a visual image or sound can be produced, and also material of a class that is prescribed by the regulations.

The government notes that material that had been suppressed can be provided if the Coroner believes it to be in the interests of justice to do so. The government acknowledges that this amendment has been further modified by the honourable member and now includes a caveat that the Coroner may decline to provide any of the material if the Coroner considers that it is not in the interests of justice to do so.

However, the government still has a number of concerns in relation to the amendment even in its revised form, and I want to note that the government has consulted extensively with the Coroner in relation to these amendments and their potential effect on the Coroners Court. Firstly, there is no material in a Coroner's file that falls outside the categories of material outlined in the existing section 37 of the act.

Section 37 already sets out how various types of material and evidence is to be accessed by the public. We understand that there are concerns that section 37 does not cover material where there has not been an inquest, but the Coroner has advised that this is not the case. For example, such material may comprise findings by the court in section 37(1)(d) or material covered by section 37(2)(a), being material not taken or received in open court, or under section 37(2)(c), being 'a photograph, slide, film, video tape, audio tape or other form of recording from which a visual image or sound can be produced'.

It is important to make a distinction between material that is part of the public court proceedings of an inquest and other material that does not automatically form part of the public record. Material that is not within the open court file is covered under section 37(2). Material in these categories is still available to be inspected and possibly also a copy provided upon application and with the permission of the Coroner.

Access to the categories of material covered by section 37(2) may also be subject to conditions. There are very good reasons for these types of material to be treated in such a manner. For example, the material covered by section 37(2)(c), being a photographic video or other evidence of this type, is also currently only available with the permission of the Coroner, for good reason.

This material can be very graphic or confronting and may include things such as post-mortem photographs. This is not the type of material that is appropriate to be released, even after a long period of time. There may also be material in the file such as allegations against persons that turned out to be unsupported or false, and the release of this information may also be inappropriate.

We have been advised that where an application for access to material falling under section 37(2) is made by the senior next of kin or family members, every effort is made by the Coroner to allow as much access as possible. The Coroners Court also ensures that where access is granted to material that may be distressing or confronting, a social worker from the court is available to support the person and can be present with them when that material is viewed.

We acknowledge that there has been an attempt in the amendments to provide protection to preserve the confidentiality of some of the material and in the newest version of the amendments that the Coroner may impose conditions on being provided with the material. However, in relation to the provisions in the amendment allowing the Coroner to redact the names of individuals, the Coroner has advised that to undertake the redactions would be a huge administrative task that would take significant resources.

The Coroner also advises that to redact the material in such a way as to properly conceal the identity of persons in the material would often render the material nonsensical. The redaction powers in the amendment would also not allow the Coroner to redact material for reasons not related to the identity of an individual, such as the graphic nature of a photograph.

The amendment also only provides for copies of material to be provided, not for material to be inspected. There is material where it may not be appropriate to provide copies of material owing to its sensitive nature, but inspection may be appropriate. This amendment does not allow for that distinction to be made.

In addition, this amendment effectively creates two tiers of access to material. New section 37A, restricted as it is to the senior next of kin, may actually be narrower in its availability than existing section 37, which applies to members of the public. As I outlined earlier, there is no material in the Coroner's file that is not already covered by the access provisions in section 37.

To summarise, the government's view is that current section 37 of the act provides the appropriate balance between ensuring transparency and the open availability of information relating to coronial matters, whilst also preserving the confidentiality of material that should be protected. It is for those reasons that the government is opposing the insertion of new clause 9.

New clause inserted.

Schedule passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (16:28): I move:

That this bill be now read a third time.

Bill read a third time and passed.

PARLIAMENTARY BUSINESS
MEMBERS
GET INVOLVED
ABOUT PARLIAMENT
VISIT
LEGISLATIVE COUNCIL
HOUSE OF ASSEMBLY
CONTACT