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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2022-11-03 Daily Xml
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Statutes Amendment (Attorney-General's Portfolio) (No 3) Bill

Introduction and First Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (12:54): Obtained leave and introduced a bill for an act to amend the Coroners Act 2003 and the Criminal Law Consolidation Act 1935. Read a first time.

Second Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (12:55): I move:

That this bill be now read a second time.

I introduce this bill today, the Statutes Amendment (Attorney-General's Portfolio) (No. 3) Bill. From time to time, Attorney-General's portfolio bills are required to rectify minor errors, omissions and other deficiencies identified in the legislation committed to the Attorney-General. Given the often technical nature of amendments in these bills, it is often more efficient to deal with such matters in a single bill, rather than separate bills for each separate amendment.

This bill makes two amendments to two acts within the Attorney-General's portfolio, being the Coroners Act 2003 and the Criminal Law Consolidation Act 1935. Part 2 of the bill makes a number of amendments to the Coroners Act to clarify how deaths that occur in accordance with the Voluntary Assisted Dying Act 2021 are to be treated under the Coroners Act. In particular, part 2 of the bill amends section 3 of the Coroners Act to remove an amendment inserted by the Voluntary Assisted Dying Act, which provides that the deaths that occur in accordance with that act are reportable deaths for the purposes of the Coroners Act, and inserts a provision which expressly provides that deaths that occur in accordance with the VAD scheme are not reportable deaths for the purposes of Coroners Act.

Currently, lawful deaths that would occur under the voluntary assisted dying scheme when it commences are reportable deaths for the purposes of the Coroners Act. Section 84(2) of the Voluntary Assisted Dying Act requires that medical practitioners who provide care immediately before a person's death or who examine the body of a person after death, where a practitioner reasonably believes that person was subject to a voluntary assisted dying permit, must notify the State Coroner of the death. When the death is reportable for the purposes of the Coroners Act, the Coroner is required to make findings as to the cause in each instance and must consider whether an inquest is required.

The South Australian voluntary assisted dying scheme is largely based on the Victorian model as set out in the Voluntary Assisted Dying Act 2017 in Victoria. However, unlike the South Australian Coroners Act, the definition of 'reportable death' in the Victorian Coroners Act 2008 expressly provides that a death that occurs in accordance with the Victorian voluntary assisted dying scheme is not a reportable death.

Furthermore, the Victorian Coroners Act allows for the Coroner to determine that a death it has investigated is not a reportable death without the Coroner having to make findings of the cause of death. Unlike the Victorian Coroners Act, the South Australian Coroners Act provides that if the State Coroner is notified of a reportable death a finding as to the cause of the death must be made by the State Coroner or the Coroners Court, following an inquest.

Consequentially, there is no discretion for a State Coroner as to whether to investigate a reportable death without taking further action. South Australia is the only jurisdiction where deaths that occur in accordance with the voluntary assisted dying scheme are treated as reportable deaths by virtue of this part of the Coroners Act.

It is clear that the full implications of making deaths under the South Australian voluntary assisted dying scheme a reportable death for the Coroners Act were not fully appreciated at the time the legislation was debated in parliament. Requiring the State Coroner to make a finding as to the cause of death for each death that occurs in accordance with the voluntary assisted dying scheme would have a significant impact on the workload of the State Coroner. More importantly, the government holds concerns that this requirement, as it currently stands, may lead to further delays in finalising the affairs of persons, which in turn may further exacerbate the trauma of the loved ones of the deceased.

The government has made a commitment to bring into operation the voluntary assisted dying legislation as soon as possible. Accordingly, the bill amends the Coroners Act to ensure that deaths that occur in accordance with the South Australian voluntary assisted dying scheme are treated under the Coroners Act the in same way as they are in all other jurisdictions. Importantly, deaths that do not occur in accordance with the voluntary assisted dying scheme will not be excluded from the definition of reportable death for the purposes of the Coroners Act. These deaths will be subject to existing processes as set out in the Coroners Act.

As an additional measure, clause 4 of the bill amends section 39 of the Coroners Act to require the State Coroner to include the number of notifications received each year under section 84(2) of Voluntary Assisted Dying Act in the State Coroner's annual report. This will ensure that notifications that are received under section 84(2) are reported on with appropriate transparency and oversight.

In addition, part 3 of the bill amends the Criminal Law Consolidation Act 1935 to delete section 63A(3) of the act, which has become obsolete following the commencement of the Statutes Amendment (Child Sex Offences) Act 2022. The Statutes Amendment (Child Sex Offences) Act was passed by the parliament earlier this year and received royal assent on 14 July 2022. The Statutes Amendment (Child Sex Offences) Act 2022 made amendments to various acts and fulfilled a number of election commitments by the government in relation to child sex offences.

In particular, section 14 of that act made important changes to section 63A(1) of the Criminal Law Consolidation Act 1935 to apply one standard maximum penalty for offences relating to the possession of child exploitation material, thereby removing the current penalty differentiation for first and subsequent offences. Section 14 of that act commenced on 1 October 2022. Despite this, section 63A(3) continues to refer to the distinction between first and subsequent offences for possession of child exploitation material. As this provision no longer has any work to do, the bill deletes this section to avoid any potential confusion regarding the intended operation of section 63A(3).

While this bill contains a small number of measures, it implements important reforms in relation to the efficiency and functioning of our justice system. I commend the bill to the chamber and seek leave to insert the explanation of clauses into Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Coroners Act 2003

3—Amendment of section 3—Interpretation

Subclause (1) makes a consequential amendment. Subclause (2) removes a provision that inserts into the definition of reportable death a death that occurs as a result of the administration of a voluntary assisted dying substance to a person in accordance with the Voluntary Assisted Dying Act 2021. Subclause (3) inserts a provision into the interpretation provisions in the Act to make clear that the death of a person in such circumstances is not reportable.

4—Amendment of section 39—Annual report

This clause amends the annual reporting provisions in the Act to require the annual report to contain the number of notifications received by the State Coroner under section 84(2) of the Voluntary Assisted Dying Act 2021.

Part 3—Amendment of Criminal Law Consolidation Act 1935

5—Amendment of section 63A—Possession of child exploitation material

This amendment removes subsection (3) which refers to various penalty provisions which were deleted from subsection (1) in a previous amendment Act.

Debate adjourned on motion of Hon. L.A. Curran.

Sitting suspended from 13:01 to 14:15.

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