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2011
LEGISLATIVE ASSEMBLY FOR THE
AUSTRALIAN CAPITAL
TERRITORY
CORONERS
AMENDMENT BILL 2011
EXPLANATORY
STATEMENT
Presented by
Mr Simon Corbell
MLA
Attorney General
CORONERS AMENDMENT BILL 2011
The Bill makes amendment to the provision concerning formal reporting by
a Coroner to the Attorney General to clarify this process and require those
reports to be tabled in the Assembly.
The Bill proposes that the
procedure to be followed when a Coroner finds evidence of an indictable offence
be modified, so that inquests and inquiries can sometimes proceed despite that
evidence being found.
The Bill adjusts the process for reconsideration of
the decision of a coroner not to hold an inquest or a hearing to clarify the way
that decision is made and reasons given.
The Bill makes provision for
information to be given to the immediate family of a deceased person whose death
is the subject of an inquest.
The details of how these changes are made
are set out below.
Clause 1 Name of Act – states the title of the
Act as the Coroners Amendment Act 2011.
Clause
2 Commencement – provides that the Act will commence on the
date decided by the Minister and notified on the Legislation Register. By
default, the Act will commence 6 months after it is notified.
Clause
3 Legislation amended – specifies that the Act amends the
Coroners Act 1997.
Clause 4 New division 1.1 heading
– inserts the heading ‘Introduction’ for Division
1.1.
Clause 5 New division 1.2 – inserts new section
3BA into the Act. This new section adds an objects clause to the Act.
Subsection 3BA (1) sets out the objects. In brief, the objects of the Act are
to establish the Coroner’s Court and the position of Chief Coroner,
provide for appointment of Coroners and deputy Coroners, give Coroners the
function of holding inquests and inquiries and allow Coroners to make a range of
findings.
Subsection 3BA (2) sets out the manner in which the objects are
to be carried out. The matters listed here are intended to inform the decisions
and actions of Coroners and others involved in the coronial process in carrying
out the investigation and the hearing (if the Coroner decides to hold one).
Accordingly, it is intended that Coroners will attempt to answer the reasonable
questions of the family and, where appropriate, keep them informed of
developments throughout the inquest. It is intended that proceedings be kept
non-adversarial, to the extent possible and appropriate to the circumstances of
each matter. It is intended that Coroners will conduct proceedings in such a
way to promoted the development of a public record of their findings and
increase public awareness of violent and unusual death, the risks to public
safety that become apparent through their investigations and the means of
reducing those risks. Finally, it is intended that Coroners and others involved
in carrying out functions under the Act will promote public understanding of the
functions of the Coroner’s Court.
Clause 6 Section 7
heading – substitutes a new heading for section 7 to reflect
current drafting practice, as functions includes powers, as defined in the
Legislation Act 2001.
Clause 7 Section 9
– omits
‘powers’ and substitutes ‘functions’ as per the change
in clause 6.
Clause 8 Section 13, new note – inserts
a note to draw attention to the provisions in Division 5.1 concerning the
decision to hold a hearing. This will aid the reader given that section 14 is
being moved by the next clause.
Clause 9 Section 14
–relocates section 14 as section 34A, which will place this provision
in the division concerning hearings, which is appropriate as the provision
concerns the decision whether to hold a hearing in an inquest or
inquiry.
Clause 10 Section 39 – substitutes new provisions
concerning counsel assisting. New section 39 concerns appointment of counsel
assisting the coroner in non-custodial deaths and inquiries. The new provision
introduces a requirement that the coroner be satisfied that the appointment be
in the interests of justice, that the lawyer have the appropriate skill and
experience and not have an actual or perceived conflict of interest. As
reflected in new subsection 39(3), the Coroner will still be able to appoint the
Director of Public
Prosecutions (the DPP) as counsel assisting –
that subsection provides that the DPP may authorise another lawyer to act in the
director’s name.
New section 39A sets out the functions of counsel
assisting. This list is not meant to be exhaustive, so the word
‘includes’ is used in the provision. Counsel assisting can help the
Coroner in the investigation and hearing phases of an inquest or inquiry.
Counsel assisting can also make submissions to the inquest or inquiry and act in
the public interest to decide matters of fact or law relevant to the inquest or
inquiry.
Subsection 39A (2) requires counsel assisting to disclose any
matter that could affect his or her eligibility to be appointed. Subsection (3)
defines counsel assisting as a lawyer pointed under section 39 or section 72.
Section 72 concerns counsel assisting in a death in custody matter. Also,
‘examining’ is defined to include cross examining and re-examining a
witness.
Section 39B empowers the Coroner to revoke the appointment of
counsel assisting if satisfied that they are no longer eligible for appointment,
or no longer able to properly perform the function or for any other reason
prescribed. It is not proposed to prescribe any further reasons at this time.
The power to do so is included to allow a mechanism to provide for as yet
unforeseen circumstances.
Clause 11 Division 5.3 heading
–substitutes a new heading for Division 5.3 to better reflect its
content.
Clause 12 Section 47 – recasts the old section 47
concerning the application of the rules of evidence. The power to set
procedures set out in old subsection 47(2) has been moved into new section
51A.
Clause 13 New section 51A – inserts new section 51A.
Subsection (1) requires inquests and inquiries to be conducted in accordance
with practices and procedures prescribed under this Act or any other
law.
Subsection (2) empowers the Chief Coroner to make practice
directions for steps to be taken in inquests and inquiries (which includes both
the investigation and the hearing) if there is nothing prescribed. In the
absence of anything prescribed or general practice directions, a coroner may
give directions about the practice or procedure to be followed in the matter he
or she is conducting.
Subsection (3) provides that the Court Procedures
Rules may prescribe matters in relation to practice and procedure for a
hearing.
Clause
14 Coroner’s findings Section 52(4) – amends section 52(4) to
require the coroner to consider whether a matter of public safety is raised by
the inquest or inquiry and comment accordingly. The power of the coroner to
comment on matters concerning the administration of justice is
preserved.
Clause 15 Notification of registrar-general Section 56
(2) (a) (i) – amends section 56 (2) (a) (i) to reflect the change to
section 58 in clause 17 below. This in intended to preserve the existing
arrangement of notification of the Registrar-General when an inquest is
adjourned and only reflects a change in numbering of section
58.
Clause 16 Report after inquest or inquiry Section 57 (3) –
amends the provisions concerning a coroner making a report to the Attorney
General. The existing provision allows a coroner to report to the Attorney
General on matters connected to the inquest or inquiry, including matters
relating to public health or safety and the administration of justice. The
amended provision still allows this to occur, but specifies that it must be in
writing and set out the Coroners findings about serious risks to public safety
revealed in the inquest or inquiry. It also empowers the coroner to make
recommendations that, in the opinion of the coroner would improve public
safety.
New subsection (4) requires the Attorney General to present such
reports to the Assembly within 6 months of receipt together with the
Executive’s response to the report.
Clause 17 Section 58
– Subsections (1), (2) and (3) change the circumstances in which a
coroner must halt an inquest after finding evidence that an indictable offence
has been committed. Presently, the coroner must halt an inquest when any
indictable offence is found. The amendment will make it so that the coroner
need only halt the inquest or inquiry when an indictable offence is found that
raises the issue of whether the relevant person caused a death, suspected death,
fire or disaster that is the subject of the inquest or inquiry. (This is called
a ‘related indictable offence’ in the new section). This means that
a coroner can continue when criminal matters are found in the inquest or inquiry
that are not connected to the death, fire or disaster.
The coroner may go
on to make findings to establish the death of the person, the person’s
identity, the date and the place of the person’s death. In an inquiry, the
coroner may make findings about the date and place of the fire or disaster.
This provision allows the coroner to proceed to find these ‘basic
facts’ and, to that extent, provide some closure for those with an
interest in the matter, such as the family of the deceased, without having to
wait for the resolution of any criminal charges that have
arisen.
Subsections (4) and (5) relate to when the DPP or the
Attorney-General lay charges or present an indictment against a person for a
related indictable offence. Again, the coroner must not proceed except to find
the ‘basic facts’ mentioned above.
Subsection (6) maintains
the exiting requirement on a coroner not to continue with an inquest or inquiry
if satisfied it should not continue.
In each of these situations, the
coroner can resume the inquest or inquiry after the time established by section
58A. This in intended to reproduce the circumstances in existing subsection 58
(4), with changes to update the drafting style and the changes in section 58.
The inquest or inquiry can resume if:
• no charge is laid by the
DPP within three months of the coroner giving the notice of the related
indictable offence, or the DPP giving notice of the intention to lay a
charge;
• the DPP gives notice that no indictment will be presented or
no charge is to be laid;
• a charge is laid or indictment presented and
the proceedings are discontinued;
• the DPP gives notice that the
proceedings are finished;
• no indictment or charge is laid and the
person is discharged; or
• if the person is convicted, no notice has
been given by the DPP and 30 days has passed.
Subsection (2)
provides that when the coroner resumes the inquest, the coroner may not make
findings inconsistent with the judgement or verdict of the
court.
Clause 18 Request for hearing or reconsideration Section 64(6)
– Section 64 of the Act establishes a process for a person with
sufficient interest in an inquest or inquiry to make an application to the Chief
Coroner for the Chief Coroner to reconsider a decision by a coroner not to have
a hearing, or to conclude a hearing. The process calls for the Chief Coroner to
ask the coroner who made the decision to reconsider his or her decision (or to
do so if he or she is the relevant coroner).
This change and the change
proposed in clause 19 (moving subsection (7) to subsection (5A) to be ahead of
this new subsection) are intended to maintain the current position but improve
the drafting and readability of the provision.
If the original coroner
agrees to the request for reconsideration, the Chief Coroner must tell the
person that there will be a hearing or a further hearing. If the original
coroner does not change their decision and the Chief Coroner agrees, then the
applicant is notified accordingly, together with an explanation. However, if
the original coroner does not change their decision, the Chief Coroner can
arrange for another coroner to hold the hearing.
Clause 19 Section
64(7) – relocates subsection 64 (7) to 64 (5A), as mention in relation
to clause 18.
Clause 20 New division 5.7 – inserts new
section 68A, which contains requirements about providing information to the
immediate family of a deceased person when there is an inquest. (Note that
immediate family is defined in the dictionary. That definition is amended by
clause 28 below.)
Subsection (1) requires the coroner to tell a member of
the immediate family of a deceased person that an inquest will be held.
Subsection (2) requires that the coroner provide information prescribed by
regulation to a member of the immediate family.
Subsection (3) provides
that this information need not be provided if the coroner is satisfied on
reasonable grounds that no member of the immediate family wishes to be told, or
it is impracticable to do so.
Subsection (4) requires the coroner to
choose a family representative who is in a position to provide this information
to other members of the immediate family, but allows the coroner to choose more
than one family representative if need be. This recognises that sometimes
members of families do not always communicate with each other, especially in
times off loss. The intent is that the coroner will only have to provide
information to one (or possibly a few) of the family members who can pass the
information on to others, not to require the coroner to provide the same
information to all of the immediate family members.
Clause 21 Section
72 –substitutes the provision about appointing counsel assisting in
death in custody inquests. The requirement to do so is preserved. The
provisions about skill, experience and conflict of interest in new section 39
(clause 10 above) are set out here also.
Clause 22 Application of
Criminal Code, ch 7 Section 76A (2) (a) –changes the reference to
section 14 to section 34A, a change consequential on the moving of section 14 as
set out in clause 9 above.
Clause 23 Section 90 heading –
changes the heading of section 90 to reflect that it is about applying to
the Supreme Court for an order that a hearing be held in an inquest or
inquiry.
Clause 24 Section 90 – changes the reference in
section 90, to reflect the redrafting in section 64 in clause 18
above.
Clause 25 Annual report of court Section 102 (2) (b) –
changes the reference to section 14 in section 102 (2) (b) to section 34A, a
change consequential on the moving of section 14 as set out in clause 9
above.
Clause 26 Dictionary, note 2 – inserts the word
‘function’ into note 2 to the dictionary, which points the reader to
the Legislation Act 2001 for the definition of a series of terms. This is
done because the references to ‘powers’ have been changed to
‘functions’ by this Bill: see clauses 6 and 7.
Clause
27 Dictionary, definition of immediate family – omits the
definition of immediate family. ‘Member of the immediate family’ is
defined in the next clause.
Clause 28 Dictionary, definition
of member of the immediate family – adds in a definition of
‘member of the immediate family’. This preserves the concept of
‘immediate family’ from the provision omitted by clause 27 above.
This term is used in new section 68A added in clause 20 above.