Ian Gilfillan: Australian Democrats in the SA Parliament

	Extract from Hansard Legislative Council 3 July 2001

Ian Gilfillan Australian Democrats Member of the Legislative Council		Parliament Index 2001 Autumn Sitting Index Browse by Subject Search all Democrats material About the SA Parliament Hansard on line
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The Hon. IAN GILFILLAN: The Democrats support the second reading of the bill. We observe that it is a curious piece of legislation. At first when I read the Attorney's second reading explanation I wondered why there was any need for the bill at all. After all, most of this bill is very similar, if not identical, to the Coroners Act 1975. A handful of amendments to the present act would achieve substantially the same purpose as this bill. The Coroner's Court is operating successfully under common law, despite the fact that it is not mentioned in the 1975 act. It is noticeable that the Attorney-General in recent years has been seeking to codify a great deal of common law. He might like to explain the underlying philosophy, if there is one, behind this constant codification process.

I would guess that the Attorney- General's explanation would be that the general public is more likely to understand and correctly interpret statute law rather than common law, and I would agree. However, on the other hand, the process of codifying the common law necessarily involves some degree of simplification. This can often lead to unexpected results and one can never be sure how the courts will subsequently interpret new statutory provisions.

In the present case, much of the Coroners Bill 2001 is designed to give the Coroner powers and duties under the statute which are the same or similar to the powers and duties which the Coroner exercises under both the present statute and at common law. I doubt that many members of the public have any need to interpret the common law pertaining to the Coroner, so this bill would appear to be of little utility. However, having said that, I do not propose to oppose the bill on those grounds. Rather, I shall turn my attention to what I regard as the significant changes to the substantive law which this bill seeks to achieve, and foreshadow some significant amendments that I intend to move.

The formal creation of the Coroner's Court is a move that does not cause any concern, given, of course, that the court already exists. The formal identification of all magistrates as deputy state coroners is likewise merely giving statutory recognition to the status quo. I welcome the inclusion of clause 20(4) of the bill, which gives the Coroner the option of taking a statement, rather than formal evidence, from a child or a person who is illiterate or inarticulate, or a person who suffers from an intellectual disability. Likewise, I am pleased to see that the Coroner's Court, as distinct from the Coroner in an individual capacity, will no longer need to obtain the approval of the Attorney-General to exhume a body for the purposes of an inquest.

The creation of a new offence of failing to provide information in relation to a death seems to be a sensible option, where a death is at all suspicious. I am also more than happy to support clause 31 under which the state Coroner may assist coroners interstate, and clause 38 under which the Coroner may provide to any person information from the Coroner's records for the purposes of research, education or public policy.

With regard to confidentiality, I have a query about clause 34 which creates a new offence of disclosing information obtained in the course of administration of this act. Section 251 of the Criminal Law Consolidation Act already provides for an offence of abusing public office by using information gained in the course of public duties to make a personal gain or to cause harm to another. Section 238 also makes it an offence to act improperly in public office.

Given the existence of these offences, I am perplexed at the perceived need to further burden or restrict the use of information obtained by officers in the Coroner's Court. It is not as though the Freedom of Information Act could be used to obtain information from the offices of the Coroner's Court. The Coroner's Court and all other courts are specifically excluded from the definition of agencies under the FOI Act. There is also a specific exemption in schedule 1 (clause 11) of the FOI Act pertaining to the judicial functions of all courts and tribunals, and to documents prepared for the purposes of proceedings in courts and tribunals.

Therefore, if it is already an offence to disclose information for gain or to harm another and the FOI Act excludes most applications to the Coroner's Court, what purpose does clause 34 serve? I am sure, on studying my contribution, the Attorney- General would be motivated to compare and contrast clause 34 with section 51 of the FOI Act and let the Council know whether there is any possibility of anyone obtaining any information at all, no matter how harmless, from the Coroner's Court.

I come now to the area in which this bill is notably deficient. As long ago as 1991, the Royal Commission into Aboriginal Deaths in Custody made a series of recommendations in relation to coroners. Recommendations 13 to 17 of that royal commission have never been implemented by the state government. They are not onerous requirements, and I will summarise their effect. Recommendations 13 to 17, if implemented, would in relation to any death in custody, first, permit the Coroner after making recommendations on a death in custody to make recommendations on other matters as he or she deemed appropriate; secondly, require the Coroner to send copies of his or her findings and recommendations to all parties who appeared at the inquest and to the relevant minister; thirdly, require each relevant agency or department to respond to the relevant minister within three months; fourthly, require any minister receiving such a response to provide a copy to the Coroner and all parties who appeared at the inquest; and, fifthly, require the Coroner to report annually to the parliament on deaths in custody generally and on the findings, recommendations and responses made under these proposed amendments. Surely, these are not particularly onerous obligations to place on the proceedings of the Coroner's Court in relation to deaths in custody.

The state government has responded to these recommendations. In 1994, the implementation report on the Royal Commission into Aboriginal Deaths in Custody, prepared for the then Minister for Aboriginal Affairs (Dr Armitage), made certain comments that these five recommendations were variously `under consideration', `does not require legislative change', `has not been adopted', `is a discretionary matter for the state Coroner' or, lastly, `should not be done'-which one must observe is a pathetic series of responses to the recommendations of the royal commission.

Recommendations 13 to 17 need not be confined in their scope to Aboriginal deaths in custody. In fact, they should not be; they are suitable to be applied to any death in custody. South Australia has a yearly average of 4.7 deaths in custody, and the figure has remained the same since the royal commission. The figure has neither increased nor decreased since the time of the royal commission. Clearly, we are making no progress. Although an average of five deaths in custody each year is five too many, it is not such a common occurrence that the imposition-

The Hon. L.H. Davis: What are the numbers that have been in custody? Is it a decreasing percentage of those in custody? The answer is yes.

The Hon. IAN GILFILLAN: The question is relevant as to the actual numbers in custody to which this relates and, off the top of my head, my recollection is that the total numbers have varied to only a minimal degree, but I cannot give an exact answer to that. It is not such a common occurrence that the imposition of these requirements on the Coroner, the police or correctional services will create a great administrative burden. The extent of the burden imposed is no more than is appropriate given the seriousness of any death in custody. One would hope that a departmental report is prepared on all occasions. Making such a report a legislative requirement under the Coroner's Act and requiring it to go back to the Coroner is merely a sensible precaution. What it will do, I hope, is to create an effective follow through mechanism so that, when the Coroner makes a recommendation in connection with a death in custody, the Coroner can ascertain whether any action has been taken in relation to that recommendation.

I am not alone in seeking these recommendations and to have them implemented. The Law Society President, Martin Keith, wrote to me on 15 June, as follows:

The Coroner's Bill 2001 falls far short of recognising and providing for many of the recommendations of the Aboriginal deaths in custody inquiry. Your attention is drawn to recommendations 6 through 40 of the royal commission's report and, in particular, recommendations 13 to 17 which propose that ministers should be accountable to the Coroner for implementation of coronial recommendations arising from deaths in custody.

While the Law Society fully supports the doctrine of responsible government, it also supports the important role of the Coroner in making recommendations which, at times, may not necessarily be agreed to by the government of the day.

The present bill provides an excellent opportunity to ensure that due consideration is given to the royal commission's recommendations referred to above.

This advice confirms my view and, consequently, I have instructed Parliamentary Counsel to draft appropriate amendments to this bill. I will be moving those amendments to give effect to recommendations 13 to 17 of the Royal Commission into Aboriginal Deaths in Custody. I hope these amendments will have the support of members and I hope that the government's attitude on these matters has changed since 1994 when, as I quoted earlier, it made those rather inane and insensitive observations about the recommendations. With those remarks I indicate that the Democrats support the second reading.